Women and the Courts

THE OPEN MIND
Host: Richard D. Heffner
Guest: Elizabeth Holtzman
Title: “Women and the Courts”
VTR: 6/20/87

Heffner: I’m Richard Heffner, your host on THE OPEN MIND. Over the years, many women who have lead Americans in the effort to achieve a decent and meaningful equality between the sexes have joined me at this table, Gloria Steinem, Betty Friedan, Margaret Mead, Helen Gurley Brown, Joan Ganz Cooney, Muriel Fox Aaronson(???) and others, too, of course. But not has focused on the extraordinary role played not so much by the courts as in the courts of America in the conduct of our judicial system itself, as far as bringing fairness and decency and intelligence to bear upon this nation’s gender problems. As today’s OPEN MIND guest testified not long ago before a major Task Force on Women in the Courts, “While discrimination against women exists in many sectors of our society, nowhere is it more offensive than within our system of justice which is ostensibly dedicated to upholding the ideals of impartiality and equal treatment”.

Brooklyn District Attorney Elizabeth Holtzman is no newcomer to issues relating to women’s rights or to issues relating to human rights, in general. Elected District Attorney of Kings County in 1981, she had already served eight important years in the United States House of Representatives. In her testimony before the Task Force on Women in the Courts, D.A. Holtzman had said, “It is a sad but undeniable fact that discrimination against women exists in our courts and manifests itself in many forms. Disrespectful and demeaning comments and behavior in the courtroom by male judges, court personnel and opposing counsel. The serious and pervasive under-representation of women in the judiciary in positions of authority within the judiciary and in appointments made by the judiciary itself. And the failure of the courts to take seriously enough various crimes of violence against women, particularly domestic violence.” So I welcome you here, District Attorney Holtzman and say that those words of yours make one extraordinary indictment. How do you explain it?

Holtzman: Well, unfortunately, that’s the terrible truth, that the country while dedicated and devoted to the ideal of justice and even-handedness, reflect many stereotypes and biases against women and actually carry out discriminatory behavior against women in their very courtrooms, in their very processes.

Heffner: Could it be otherwise in a sexist society?

Holtzman: Of course it could be. The judiciary itself could play a leadership role in calling for change whether it’s in the appointment process, whether it’s in the treatment of women attorneys, whether it’s in the decision making process itself. But the courts themselves, for the most part, have stepped and have not become advocates for change within the system.

Heffner: You say, “for the most parts” as I gather in several states, New Jersey is one, New York is another, at least Task Forces have reported and some action is being taken. What about around the rest of the country?

Holtzman: Well, action has been taken only in a few states. And generally in those states it’s not been at the initiative of the courts, but at the initiative of outside groups, particularly women’s groups. I, myself, remember calling the Chief Judge of New York State and asking him to initiate a study in New York State. And his first reaction was not at all positive or supportive. In fact, it was quite hostile. So ultimately New York State did have a Task Force Report, but it was a result really of intense pressure to get that. In the other states there isn’t even the kind of self-examination that began in New York and New Jersey and that’s underway in a number of other states.

Heffner: But when Chief Judge, and I’ve said to you let’s not talk about New York, but when Chief Judge Cook retired, Wachtler who took his place as Chief Judge, I gather welcomed the report and did do a great deal to implement it.

Holtzman: Well the report has been welcomed, but let’s look at the implementation.

Heffner: No, let’s.

Holtzman: We have an administrative system within the courts for operating the courts. The number of women that hold any role in that called the Office of Court Administration, high-level role is minuscule …minuscule, virtually no change has taken place in terms of the number of appointments of women there. If you look at the women in the New York State court system, and I don’t think New York State is very different from the rest of the states, we have about, I guess about eleven percent of the Judges are women. But when you start looking at where those women serve, most of them serve in the Family Courts or in the lowest level courts. Aside from the Family Court, there’s not one single woman who holds an administrative position within the court system.

Heffner: Of course, the Report and your own comments…

Holtzman: So these kinds of changes could be made easily, if the Judiciary itself were to say, “We want to make sure that we, ourselves, are not in anyway advocating or implementing discriminatory attitudes.

Heffner: Do you think steps like those that you suggest would be sufficient. You’ve talked really about basic ideology…

Holtzman: Well.

Heffner: … that characterizes the court system. The attitude towards women pleading their cases before the bar.

Holtzman: The problem is so pervasive that you can’t just throw up your hands and say, “Well where do I begin?”, you have to begin in a lot of different places. You have to begin by enlisting the courts themselves as part of solving the problem, as opposed to part of remaining the problem. And that really hasn’t happened to the extent it needs to. Secondly, you have to pressure the court system to change. Which means you’ve got to insist on the development of training programs for the Judges who are there. Just recently in Brooklyn the Victims’ Services Agency, after discussions with us, had a training program for Criminal Court Judges on the question of domestic violence. It was an extremely successful program that’s now been replicated elsewhere.

Holtzman: We think that kind of program ought to be adopted statewide. Massachusetts has now begun mandatory training of Judges with respect to sensitivity to issues of sex discrimination. But training ought to be something that’s carried on nationwide. In addition there has to be a mechanism for disciplining Judges and lawyers as well as Court personnel who demean women lawyers and women who are victims, the witnesses.

Heffner: How pervasive is that? I know one can be anecdotal and tell the story of this Judge who said “Honey” to this young female attorney, but how pervasive is it?

Holtzman: “Honey” is the mildest, unfortunately. Since I’ve been DA, I’ve have complaints ranging from the use of four letter words by Judges about women attorneys to the use of similar language by opposing counsel, to comments on women’s anatomy to one Judge who said when a woman prosecutor responded with some vehemence to some ruling he had made, who was making a vehement argument, he said, “I’m going to take you over my knee and spank you”. So, unfortunately, the kinds of comments are very derogatory, highly unbecoming in a courtroom and reflect still on – going sexist attitudes.

Heffner: Do you think, forget now for a moment, the fact that we have changed in terms of newer generations, younger generations, we are chaining our attitudes towards the relationship between men and women. Do the law schools today so teach that you can be secure that the new generation of Judges will have been trained away from … you talk about training courses for Judges on the bench now, are the law schools doing their bit in this area?

Holtzman: Well, I wish I could give you a full and complete answer to that. I’m not sure that anyone knows fully, but, surely there are some detects. One is that there are a very small number of women on law school faculties. And that obviously has to make a difference in terms of how men and women perceive the roles of women within the legal system and within the judicial system.

Heffner: You know, let me stick with that for a moment. I remember when Betty Friedan and Gloria Steinem where here on a program and a third person, whose name I forget, the question came up about feminism and humanism and when you say that it is the numbers that count and if you have so few women, comparatively, it’s not really to be a surprise, a source of astonishment that there isn’t that sensitivity. But I would think that the kinds of law professors you would consider good professors, male or female, would deliver the message that you delivered before this Task Force yourself.

Holtzman: Well, one would have hoped that. But I was at Harvard Law School and I graduated from Harvard Law School and when I attended school there, one would have agreed with you. The most outstanding law professors in America surely people-of intelligence, sensitivity, compassion, understanding of Constitutional principles, yet they…I had a law professor who refused to call on women in the class and had was known as a “Ladies Day”, insisted that all the women go up and stand in front of the class one day of the year and would, basically, pick on us. And we didn’t know any different and any better. So the fact that these are people, law professors who teach at outstanding law schools or have marvelous educations themselves does not mean that they will be sensitive or understand their own biases, the biases of other people and how to change them.

Holtzman: Obviously, it’s good that we’re now seeing some courses in gender discrimination in law schools, but the fact of the matter is that the problem is still with us and the law schools, themselves, are not bringing enough women in, enough minorities in to begin to change people’s attitudes, not only about how people should behave to each other in the abstract, which is one thing if you teach about what the Constitutional principles ought to be, but if you don’t have women there, as professors, in tenured ranks, if they’re not holding the respective positions within the law school, then what’s the signal about the role that women play within the legal profession as a whole?

Heffner: In terms of the signals that the system now gives off, how does it affect in your estimation, how does it affect many of the women who turn to the law?

Holtzman: Well, I think it has a detrimental effect on the women who have to come into a courtroom, I think there have been many changes by the way, certainly in the criminal area, and again I would say this is really a result of activity on the part of the women’s movement, particularly violence against women is of epidemic proportions in this country. And it’s beginning; I would say twenty years ago a woman who was raped could expect to be sneered at by the police officer, sneered at possibly by the prosecutor. If somehow she could get passed all the barriers of having her prosecution brought and she would take the stand, all the details of her prior sex life would be made public; she would be humiliated on the stand. These things have changed. We now have had lots of training for police officers and I think the sensitivity in general, certainly in New York City and I think in many places around the country has changed so that we now have very sensitive treatment of women who are sex crimes victims by the police. Prosecutors in a number of states have set -up special units to deal with cases involving women who have been victims of sex crimes and I think prosecutors are now, I can’t say all of us have -achieved nirvana or the utopia in this respect, but we’re … many, man strides have been made in terms of sensitive treatment. The judiciary, I think in some states, where they’ve had these Task Forces reporting have developed some training programs, but we still find instances in which the Judges are not sensitive, make fun of the women or make comments that are derogatory … the Judge in Wisconsin who made derogatory comments about a woman who was a rape victim, ultimately he was voted out of office as a result We see cases like that coming up around the country So we’ve made progress, but not enough And if you want to look at the issue of violence against women, we still have twenty-two states in this country that permit marital rape to take place without any punishment The marital rape la are all derived from the basic notion that once a woman is married, she becomes really the physical property of her husband These are probably the only laws on the books of any states in this country that reflect the notion that a human being becomes the property of another human being. In addition we have very serious problems with regards to attitudes on the part of juries in the prosecution of certain kinds of rape cases. Generally a woman is held to a much higher standard than any other crime victim in a sex crimes case. For example, let’s say a woman is walking down a dark street coming home at night from work or from visiting a relative and she’s assaulted and somebody steals her purse. And the evidence is overwhelming as to the assailant, the jury’s not going to say, “What was this woman doing out at night, she should never be walking on the streets, it’s her fault and why’s she carrying a purse, why’s she carrying money?” they’ll convict. Let’s turn this around and have a situation where you have a woman, for example, who’s waiting in a bus stop, and it’s snowing at night and the bus hasn’t come for a half-hour and she’s waiting go home.

Holtzman: A man drives up in a car, has a nice looking car, he’s well dressed, he says, “Do you want a ride home?”, she’s a little nervous but she says, “I’m not going to wait for this bus anymore and it’s getting late and she’s cold and so she gets into the car and as soon as she’s in the car, he rapes her, In those circumstances a jury might well say, “She was stupid to get in the car and it’s really her fault” .Any kind of situation in which the woman has any sort of prior dealing with the man, at that point we have very great difficulty persuading the jury that the woman is still the victim. That it’s not her fault. So we confront even in the prosecution of these cases very serious stereotypes and attitudes.

Heffner: But, of course, when you say stereotypes, you’re saying this isn’t really the fault of the judicial system, this is the baggage, the cultural, intellectual baggage we Americans bring with us.

Holtzman: Right, but we need to really develop ways of trying to combat that. To figure out how we can work within the existing Constitutional framework to try to eradicate those stereotypes.

Heffner: The existing Constitutional framework, it wasn’t so long ago that Thurgood Marshall from the … not from the bench, but of the high court indicated that all of this talk about the Bicentennial left him a little bit cold because the Constitution itself had been so thoughtless and careless about minorities, about women. I wonder how you feel about that.

Holtzman: Well I’ve been saying some of the same things as Thurgood Marshall for sonic time. I mean obviously having been in the House of Representatives and having sat on the Impeachment Hearings and having studied the Constitution in law school as well as in Congress, I became increasingly respectful of what a wonderful scheme it sets forth for democratic self-government, On the other hand, being a woman and living as long as I have by now, I’m increasingly familiar with the extent and depth and pervasiveness of discrimination. And as a lawyer, as a woman, as an American citizen, I find it personally offensive, indeed, horrifying that we conic to this birthday of the Constitution two hundred years later and the Constitution, itself, does not say that women are equal under law. More than half of our population at the time of the celebration of the Bicentennial will stilt not be equal under the law. And that’s really something that’s a very sobering fact. And while we have a lot to be proud of in terms of the celebration of the Constitution and two hundred years of self-government, we still realize and must realize that there’s a long way to go.

Heffner: When James MacGregor Burns was here a few weeks ago, we talked about Thurgood Marshall’s comments and I asked historian, political scientist Burns whether he would opt in favor of a reconstruction of the Constitution, just as our Fore – Fathers reconstructed the Articles of Confederation, gave us the present Constitution. Do you think that the changes that are needed are so fundamental that you would go beyond Amendment to restructuring the Constitution?

Holtzman: No, I’m going to be very conservative about this. I think that the Constitutional framework has worked for two hundred years to preserve self- government. But it needed to be changed to abolish slavery that was one of the very sad factors that it enshrined was the notion of human property. It’s still sad, today, to find that it does not treat women as equals under the law that has to be changed.

Holtzman: But I think these changes can he accommodated. Actually, if the Justices of the Court would interpret the Fourteenth Amendment appropriately, there would be no need for the Equal Rights Amendment, but they haven’t done that yet. And so…

Heffner: But there’s another point, too.

Holtzman: … that’s a sad fact.

Heffner: There’s another point, too, isn’t there and that is that riiany people in your position as a top prosecutor, feel that the Constitution lags way behind contemporary problems in the area of crime and that what has happened is that we are…our hands are tied in identifying and convicting and incarcerating people … the “poipertrators” as we used to call them .Now how do you feel, that you’re a Liberal, a political Liberal, you’re a prosecutor and you’re a tough prosecutor. Now do you feel about the charge that has been made, that the niceties of the Constitution have stood in the way of putting people behind bars where they belong.

Holtzman: It’s a misapprehension. Actually, I don’t think there’s any basic conflict between the notion of fairness and justice in handling these cases and effective prosecution and effective police work and effective prevention. I think that we’ve improved the quality with which we handle these cases. I think the Constitutional changes that have been made, for example, allowing defendants to know that they can have the right to counsel right away. I think that various steps have been taken, for example, to respond to that decision by the Supreme Court has really minimized the number of beaten confessions, forced confessions. So I think the system has gotten fairer, and I think the system has gotten more effective, in fact.

Heffner: I know that what you say about “fairer” … but I’ve read so often the arguments about effectiveness, ineffectiveness, about police being hamstrung, about prosecutors being hamstrung. That has not been your experience, at all?

Holtzman: That’s not the result of the Constitution. We’re hamstrung many times because there are not enough police to do enough of an investigation to find all the evidence or witnesses are intimidated and won’t come forward. Or witnesses, for a variety of reasons, are not credible, those are the basic reasons that we lose cases or can’t bring them, not because the Constitution says we … there’s an impediment.

Heffner: Okay, we’ll say Happy Birthday to the Constitution this year. But let me go back to something you that were talking about … I wanted to extend our discussion. You mentioned violence against women and we think about domestic violence. Is this, again, another of those areas in which stereotypes, presumptions- get in the way of treating women as they should be treated?

Holtzman: Oh, absolutely. Well, just as in rape cases, the basic stereotype, the basic assumption was that “It’s the woman’s fault. She asked for it. A nice woman doesn’t get raped”. Add those attitudes were … and also that a woman is property and the rape is a violation of her as property. All those attitudes were enshrined in the laws and those have been changed. But with respect to domestic violence, there wasn’t too much change needed in the law, but a lot of change is still needed in the attitude.

Holtzman: There’s a very interesting point about domestic violence, to give you an idea of how old it is and how much it’s been sanctioned by our judicial system. The saying, “Rule of thumb” really comes from a practice of domestic violence. It used to be that it was legal for a husband to beat his wife as long as the object he used was no wider than his thumb.

Heffner: Terrific.

Holtzman: That’s were the rule of thumb conies from. So the law did protect women against too much violence, but there was appropriate violence that a husband was allowed to mete out to his wife. Now, of course, we don’t accept that notion, but there’s still a view in the courts that if a woman is beaten, she’s responsible. And that it’s not a serious crime, that it doesn’t affect other people and the police ought to stay cut of it, the prosecution ought to stay out of it, the courts ought to stay out of it. And many women, themselves, also believe these things, so that if they’re beat they are knifed, if they are shot, they say, “It’s my fault and I’m not going to do anything about it. This is the way life is” and so you have a very serious problem which many women won’t report the crimes committed against them by their husbands or their lovers because they believe it’s their fault. And even when they do report it, many times the legal system will say, “It’s your fault anyway”. And that’s particularly difficult to deal with. We’ve had sonic training programs to begin to sensitize Judges, we ourselves ha been holding training programs in our office to help sensitize ourselves. But the society really has to move much farther in this area. And the incidence, by the way, of domestic violence is astronomical. I think the FBI estimates that a woman is beaten by her spouse or by her lover every eighteen seconds in this country.

Heffner: You know you talk about the Judges and you talk about the prosecutors, you haven’t mentioned the police in this matter of domestic violence.

Holtzman: Well, I think there’s … well, I think I did, but I’ll say it again. The attitude of the criminal justice system, until very recently was that these cases didn’t belong in the criminal justice system, it was basically a family matter, we shouldn’t be involving ourselves in it and anyway, it was probably the woman’s fault. I think we’ve begun to see some changes in a few states. For example, in Minnesota, in New York City, police have begun to make inure arrests … arrest is the preferred course of action rather than have a police officer come to a scene of domestic violence and say, “Kiss and make up”, the police officer, if it’s a felony, must make an arrest. We think, and the preliminary evidence from the experience in Minneapolis has shown that that reduces violence. Many times it’s a profound educational tool because many husbands don’t think there’s anything wrong with beating their wives. So if they’re arrested for it, it comes as a big shock and a big education.

Heffner: But what are the instructions

Holtzman: And that’s now happening in New York as well.

Heffner: What are the instructions that the police get in terms of domestic violence, are they told that the Judges are going to look at it this way in New York?

Holtzman: No The protocols in some places have now been changed so that they must make an arrest, they are mandated to make an arrest, if they see a certain level of violence. And they have a discretion to make an arrest in other cases or in some case, they are mandated if the woman wants an arrest. So that what we’ve seen is a basic change in a few places, not enough places, but we’ve begun to see sonic major changes with regard to how the police handle this. In sonic places prosecutors have instituted training programs or different programs to make sure that these cases are handled properly. We have in our office a number of other prosecutors are doing the same thing. The courts have begun, in sonic small places, training programs. But a lot more has to be done. We don’t even have enough shelters for these women now. I mean there are enormous waiting lists and a woman who has been beaten is confronted with a very serious problem. Where does she go, especially if she’s got children? And they, themselves, may be at risk, too.

Heffner: We have a minute and a half or so left. I just wanted to ask you, what do you consider to be the most important thing that you’ve done as a prosecutor?

Holtzman: Well, I think I wouldn’t single out any one thing, but I think the most important thing is to stand for excellence and fairness and integrity in the system. And to eliminate examples of sexism that we’ve found or racism. When I became DA there were no women who were in charge of any bureaus. I’ve been able to change that. Almost half of our bureaus are now headed by women. We have minorities in important positions in the office. The office … I try to make it an example, not only of integrity, but an example of the fulfillment of American ideals.

Heffner: Sonic day we’ll have to get together here and talk about what the impact of that has been, not upon the treatment of women, but upon what, putting women in those positions does to the administration of the law, improved it in your estimation?

Holtzman: Definitely.

Heffner: Why, what qualities?

Holtzman: Well, I think because it … the signal is to everybody that you’re going to be picked on the basis of merit, not on the basis of your gender. And if you do a good job you have a chance of getting to the very top. And that, I think, encourages everyone.

Heffner: Of course, what I really meant by that was the quality of justice, different, when there are quite as many District Attorneys who are women, Assistant District Attorneys, Bureau Chiefs, etc. We don’t have the time to talk about that, so you’ll have to come back.

Holtzman: (Laughter) Okay.

Heffner: Thanks very much, Elizabeth Holtzman. And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P. 0. Box 7977, FDR Station, New York, NY lot 50. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: the Rosalind P. Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wein and the New York Times Company Foundation.