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Biblical Framework Psyc5358

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Biblical Framework Psyc5358 Family Assessment Biblical Framework ◼ Genesis 1:26-27, Galations 3:28 Differentiated functions yet equals ◼ Communication is essential Genesis 2:18-25, Leviticus 20:13, 1 Cor 11:11-12, Romans 1:24-27 Man and woman are complements Homosexuality is not God’s design Biblical Framework continued… Genesis 1:28 *Procreation *Every child has a God given right to have a father and mother who nurture his or her development Ephesians 6:4 Parents are to raise their children in a disciplined manner and in the nurture and admonition of the Lord ◼ Biblical Framework continued… ◼ ◼ ◼ ◼ ◼ Exodus 20:12, Ephesians 6:1 Children are to obey their parents Parents are to establish a loving power hierarchy Ephesians 6:4 Parents are not to provoke their children to rage Biblical Framework continued… ◼ ◼ Parents are to love one another in such a way that their relationship would be a positive testimony to their children of the goodness, love, mercy, and grace of God Remember that our first image of God is in direct relationship to our image of our earthly parents Genesis 2:24; Matthew 19:5-6; 1 Corinthians 6:16; Exodus 20:14 ◼ ◼ ◼ ◼ ◼ Man and woman should leave their family of origin Man and woman should mutually commit to one another Marriage is to be monogamous Marriage is a life covenant Fidelity in thoughts and life plans during marriage is as models by God’s covenant with His people ◼ ◼ ◼ ◼ ◼ 2 Cor 6:14 Choose a mate who is a believer Ephesians 5:21: mutual submission Genesis 1:31: Husbands and wives are to celebrate their sexuality together as a committed couple. A couple is free to enjoy one another provided there is mutuality and respect Purpose of Family ◼ ◼ ◼ ◼ The family serves the function of propagation of the race The family is the provision of a place of understanding, love, and companionship The marital relationship provides the legitimate expression of sexual intimacy The family is the environment which is designed to convey a healthy understanding of God and to promote the kingdom of God DOMESTIC VIOLENCE, CHILDREN, AND TOXIC STRESS A llan R. De J ong , M.D.’ “It is easier to build strong children than to repair broken men. Frederick Douglass “The child is the father o f the man. William Wordsworth ” ” I. Introduction It is estimated that approximately 1.5 million women and 830,000 men experience physical or sexual assault annually in the United States by intimate partners, commonly called domestic violence.’ In the United States, more than 15 million children live in families in which domestic violence occurs and almost half of these children witness severe violence in assaults of a parent.*12 As individuals and as a society, we need to face the reality that exposure of children to domestic violence undermines healthy physical and emotional development for the child, which places the child at increased risk of physical and emotional diseases and disabilities as adults.3 The effects of domestic violence on children include social consequences, physical consequences, and behavioral or neuroendocrine consequences that may result in transient, long-lasting or permanent harm to the child.4 The purpose of this discussion is to provide a medical background for the urgency for appropriate intervention in situations where domestic violence occurs in the presence of children. II. Overview of the Effects of Domestic V iolence on C hildren The social consequences for children include those related to the violence directed at their mother and the common association of domestic violence and child abuse. Studies indicate that families with either child abuse or * Dr. De Jong is the Medical Director of the Children at Risk Evaluation (CARE) Program at the Nemours – A. I. duPont Hospital for Children in Wilmington, Delaware and Clinical Professor of Pediatrics at the Sidney Kimmel Medical College of Thomas Jefferson University. For more than 35 years. Dr. De Jong has conducted medical evaluations for suspected victims of child abuse. 1Jonathan D. Thackeray et al., Clinical Report-Intimate Partner Violence: The Role o f the Pediatrician. 125 P ediatrics 1094.1094-95 (2010), http://pediatrics.aappublications.org/con tent/125/5/1094. 2 Megan Bair-Merritt ct al., Silent Victims-An Epidemic o f Childhood Exposure to Domestic Violence, 369 N ew Eng. M ed . 1673, 1673 (2010). http://www.nejm.org/doi/full/10. 1056/NEJMp 1307643. 3 Thackeray, supra note 1, at 1095; Bair-Merritt, supra note 2, at 1674. 4 Thackeray, supra note 1, at 1095. 201 202 Widener Law Review [Vol. 22:201 domestic violence have a 30-60% chance o f having both types o f violence occurring in the home.5 When the abuser, which oftentimes is the father or father figure, is removed from the household, another abusive father figure unfortunately may step in, which in turn leads to severe family disruption. Legal and social interventions may result in the removal o f the abuser from the home or the removal of the children from the home for variable periods of time. The physical consequences o f domestic violence include direct injury to the child associated with a domestic violence incident and indirect injury from the victim of domestic violence being unable to provide a safe, nurturing environment for the child. Direct injury may involve the fetus.6 Pregnancy may increase the risk o f domestic violence for women and domestic violence in this setting is associated with prematurity, low birth weight, and perinatal death.7 More commonly, we see direct injury to the child who is present with their mother during a domestic violence episode.8 Infants may be injured when the mother holds the infant in her arms as the abuser physically attacks her. The mothers may attempt to provide protection for the infants by holding them, or may think they can use the infant as a type of “shield” to stop the abusers physical assault. In either case, the child may suffer physical injuries. Some younger children may simply be unable to get out o f the way and are struck by physical blows or thrown objects during the domestic conflict. Older children and adolescents may try to intervene and are injured while trying to prevent injury to one o f both o f the adults. Any child in a violent environment may be injured as a proxy to the adult “victim” as the abusive adult tries to control the victim by hurting the child, which threatens to produce even greater injury to the child if the victim resists the abuser’s control.9 The behavioral and neuroendocrine consequences are the most significant consequences because these include generally poor social, emotional, and developmental growth o f the child with associated poor overall physical and mental health during adulthood.10 These consequences in infants may be manifested as increased irritability, increased emotional arousal, and less responsiveness to adults.” In the school-aged child, the effects are often manifested as anxiety, depression, attention problems, aggression, and withdrawal.12 Adolescents may exhibit similar symptoms as school-aged children, and they may show bullying and risk-taking behavior and experience dating violence.13 5 Thackeray, supra note I, at 1095. 6 Id. 7 Id. 8 Id. 9 Id.; see also Bair-Merritl, supra note 2, at 1673-74. 10 Thackeray, supra note 1, at 1095. 11 See id. ]2ld. 13Id. 2016] Domestic Violence, Children, and Toxic Stress III. T h e L if e l o n g C o n s e q u e n c e s o f C h i l d h o o d T r a u m a A dversity 203 and Over the last two decades we have learned a lot about the effects of trauma on children. This knowledge includes the effects seen in the developing child and subsequent, life-long effects found among adults who were subjected to abuse, neglect and domestic violence as children. Trauma is cumulative and dose-related – the greater the number of episodes of trauma experienced over time, the worse the effect.14 Early childhood trauma appears to have the greatest impact.15 Trauma early in life affects the child’s development of attachment, emotional regulation, and impulse control.16 Traumatized children act differently than non-traumatized children.17 Traumatized children have lower social competence; they have less empathy for others, can’t recognize their own emotions, and can’t recognize other’s emotions, resulting in impaired interpersonal relationships.18 The cumulative doserelated effect of childhood trauma can last a lifetime. Traumatized children are at increased risk of adverse health effects including physical and psychological health.19 Generally, we have learned that childhood adversity has lifelong consequences, and specifically, that adversity is strongly associated with unhealthy adult lifestyles and poor physical and mental health years later.20 In the mid-1990s, Drs. Felitti and Anda began a study of more than 17,000 adults, largely considered to be of middle class, who received heath care through the Kaiser Permanente Health System. These adults clearly demonstrated that Adverse Childhood Experiences (ACEs) can contribute significantly to negative adult physical and mental health outcomes.21 In their initial and subsequent studies, their list of adverse childhood events included: physical abuse, sexual abuse, emotional abuse, physical neglect, emotional neglect, domestic violence in home, household substance abuse, household mental illness, parental separation or divorce, and incarcerated household member.22 They found ACEs are common, with approximately 14 See John Stirling, Jr. et al., Understanding the Behavioral and Emotional Consequences o f Child Abuse, 122 P ediatrics 667,668 (2008), http://pediatrics.aappublications.org/content/ pcdiatrics/122/3/667. ful I.pdf. 15 See id. at 669-70. 16 Id. 17Id . 18 Id. 19 Vincent J. Felitti et al., Relationships o f Childhood Abuse and Household Dysfunction to Many o f the Leading Causes o f Death in Adults: The Adverse Childhood Experiences (ACE) Study, 15 A m . J. PREVENTATIVE M ed . 245, 251 (1998), http://www.ajpmonline.org/article/S07 49-3797(98)00017-8/pdf. 20 Id. 21 Id. at 245. 22 Shanta R. Dube et al., Childhood Abuse, Household Dysfunction, and the Risk o f Attempted Suicide Throughout the Life Span: Findings from the Adverse Childhood Experience Study, 286 J ama P ediatrics 3089, 3090 (2001), http://jama.jamanetwork.com/art icle.aspx?articleid= 194504. 204 Widener Law Review [Vol. 22:201 two-thirds o f their patients had at least one ACE and one-fifth reported three or more ACEs.23 Adults who reported exposure to domestic violence during childhood were 6 times more likely to also experience emotional abuse, 4.8 times more likely to also experience physical abuse, and 2.6 times more likely to also experience sexual abuse.24 As the investigators reviewed the health o f their patients, they found the effects of the ACES were “dose-related”; the more ACEs the individual reported the worse were their physical and mental health outcomes.25 A number o f the poor outcomes appeared related to increased risk taking behaviors demonstrated by patients with ACEs, including substance abuse, alcoholism, smoking, and risky sexual behaviors.26 O f particular importance was the association o f higher ACE scores with increased risk o f being either a victim or perpetrator of interpersonal violence.27 Less intuitive were negative health outcomes that appear to be less directly mediated through health risk behaviors including chronic heart disease, liver disease and autoimmune disorders.28 Over the course o f the last two decades, it has become clear that the negative health outcomes associated with ACEs are mediated through a combination o f increased heath risk behaviors, the effects o f chronic stress on the brain, the endocrine system, the immune system and the function o f genes.29 Adverse childhood experiences are associated with poorer physical and mental health as adults. Thus, in order to produce healthier adults, we need to make healthier children, and to do that we need to address the role o f chronic stress. IV. T h e R o l e of C h r o n ic St r e s s or T o x ic St r e s s It is important to recognize that not all stress is bad. There are three categories of stress experience: positive stress, tolerable stress, and toxic stress?0 Positive stress is involved in many common experiences and 23 Dube, supra note 22, at 3092. 24 Thackeray, supra note 1, at 1095. 25 Felitti, supra note 19, at 250. 26 Robert F. Anda et al.. The Enduring Effects o f Abuse and Related Adverse Experiences in Childhood: A Convergence o f Evidence From Neurobiology and Epidemiology, 256 EUR. A rchives O f P sychiatry & C linical, N euroscience 174, 181 (2006), http://link.springer. com/article/10.1007/s00406-005-0624-4. 27 Id at 178-79. 28 Felitti, supra note 19, at 251. 29 Comm, on Psychosocial Aspects of the Child and Family IHealth et a t, Early Childhood Adversity, Toxic Stress and the Role o f the Pediatrician: Translating Developmental Science Into Lifelong Health, 129 P ediatrics e224, e225 (2011), http://pediatrics.aappublications.org/ content/early/2011/12/21 /peds.2011-2662; Jack P. Shonkoff et al., The Lifelong Effects o f Early Childhood Adversity and Toxic Stress, 129 PEDIATRICS 1, e235-e237 (2012); Sara B. Johnson et al., The Science o f Early Life Toxic Stress fo r Pediatric and Advocacy, 131 P ediatrics 3 19, 325 (2013), http://pcdiatrics.aappublications.Org/content/131/2/319; Andrew S. Gamer, Home Visiting and the Biology O f Toxic Stress: Opportunities to Address Early Childhood Adversity, 132 P ediatrics S65, S69 (2013), http://pediatrics.aappublications.org/ content/] 32/Supplemcnt 2/S65. 30 Shonkoff, supra note 29, at e325. 2016] Domestic Violence, Children, and Toxic Stress 205 interactions.31 The body’s response to positive stress is a brief increase in heart rate and mild transient elevation of stress hormone level.’2 These responses tend to increase our focus or concentration and improve performance, and in certain cases, they can be protective from physical trauma.33 Tolerable stress involves more serious and more prolonged activation of stress hormones in response to a stressful situation, but the effects of the stress are buffered by supportive relationships with family, friends or other contacts.34 Toxic stress involves prolonged activation of the stress response systems in the absence of protective relationships.35 Prolonged elevation of the stress response can result in changes to the brain and other organs, and the ability of the body to regulate the response to stress.36 Toxic stress in children who experience traumatic events is often called child traumatic stress.37 So how do we define child traumatic stress? Child traumatic stress is “the physical and emotional responses of a child to events that threaten the life or physical integrity of the child or of someone critically important to the child (such as a parent or sibling).”38 These traumatic events overwhelm a child’s capacity to cope and elicit feelings of terror, poweriessness, and out-of­ control physiological arousal of the body’s stress response.39 The effects or impact of the trauma are dependent on factors related to the child, the family and the situation. Traumatic stress may be an acute response to a single traumatic event (natural disasters, illness, accident) or a chronic response to recurring or cumulative traumatic events (war, abuse, neglect).40 A critical factor for the developing child is that events that threaten their safety or are frightening can lead to changes in the way the body reacts initially, and these changes may persist.41 The critical issue regarding traumatic stress is whether it produces a longstanding physiologic change in the individual.42 So to summarize: 1. Three interrelated categories of ACEs – child abuse (physical, sexual, and emotional), neglect (physical and emotional), and exposure to domestic violence/interpersonal violence – are sources of traumatic stress for children.43 31 Shonkoff, supra note 29, at e325. 32 Id. 33 Id 34 Id. 35 Id. at e235-36. 36 Id. at e236. 37 See Am . Acad , of Pediatrics, Hei.ping Foster A doptive F amilies Cope with T rauma 4 (2013), https://www.aap.org/en-us/advocacy-and-policy/aap-health-initiatives/hea llhy-fosler-care-america/Documents/Guide.pdf. 38 Id. 39 Id. 40 Id. 41 Shonkoff, supra note 29, at e326. 42 See id. at e237-e238. 43 Id. at e326. 206 Widener Law Review [Vol. 22:201 2. Traumatic stress becomes toxic stress when it makes persisting changes in the way the body responds to stress.44 3. Children are more susceptible to these changes, and these changes play a role in physical and mental health outcomes later in life.45 4. Toxic stress produces changes in multiple body systems. Major changes can be found in social/behavioral functions, the neuroendocrine system (brain structure and stress hormone regulation), and in molecular function (genetics, epigenetics, and immune function). These systems are inter-related and changes in one system can result in changes in another. Resilience, or the ability to recover from a stress, may not be the same across all systems.46 A. Effects o f Toxic Stress on the Social/Behavioral System The social/ behavioral systems are often the most easily detected changes. The three major behavioral goals of child development are attachment, regulation, and cognition.47 Attachment is the ability to develop a relationship with at least one individual.48 This primary attachment opens the door to establishing relationships with others. Regulation requires learning to effectively control your feelings.49 Cognition is required to allow for the development of an informational base and to use it for decision making and problem solving.50 Impaired attachment to the parents or caretaker during early childhood promotes poor connection to, relationships with, and distrust of all adults.51 Early childhood development involves back and forth exchanges between parent and child, each adjusting their responses to the other. Regulation of exchanges is impaired by lack of normal parent-child interactions, and in the face of persistent fear or alert states induced by toxic stress, the children develop less empathy for others and have difficulty in recognizing their own and other’s emotions.52 Cognition is impaired, as toxic stress results in the child having a poor working memory, an inability to control impulsive behavior, and poor cognitive flexibility, causing impaired organizational skills.51 When something frightening happens, the brain makes certain you do not forget it, and we remember these events in a special way. We remember the pattern of sensations involving the sights, the sounds, the 44 Shonkoff, supra note 29, at e238. 45 Gamer, supra note 29, at S68-69. 46 A m . Acad, of P ediatrics, supra note 37, at 2-3. 47 Kristine Jentoft Kinniburgh et a!., Attachment, Self-Regulation, and Competency, 35 P sychiatric A nnals 424,429. 48 Id. 49 Id. 50 Id. 51 Stirling, supra note 14, at 669-70. 52 Id. 53 CHILD W elfare Info. G ateway, Understanding the Effect o f Maltreatment on Brain Development 6-8 (2015), http://www.childwelfare.gov/pubs/issue-briefs/brain-development/. 2016] Domestic Violence, Children, and Toxic Stress 207 smells and our feelings all mixed together.54 Exposure to any one of these “trigger” sensations can make the child feel like the frightening experience is happening again. Common behaviors seen in children living with toxic stress include: “hair trigger” emotional responses; hyper-vigilance; frequent aggression; poor impulse control; difficulty regulating their arousal; reluctance to turn to others for help (distrust); inability to discuss their feelings; detachment; withdrawal; and insecurity over food, safety; or relationships and therefore are very hard to parent.55 Furthermore, these children are labeled “behavior problems” and may end up being social pariahs and difficult to educate.56 B. Effects o f Toxic Stress on the Brain and Neuroendocrine System The behaviors observed in children exposed to toxic stress originate from the changes induced in the structure and function of the brain and the neuroendocrine system.57 To understand how this happens, we must first consider how the brain normally grows. Brain growth is very rapid during the first two years of life, achieving 75-80% of its adult weight by age two, and reaches 90-95% of its adult weight by age eight.58 The plasticity of the brain, the ability of the brain to change structurally in response to experience, is greatest during the first two years of life.59 At birth, the brain contains most of the neurons or “nerve cells” it will ever contain.60 Neurons typically “grow” by increasing the connections between neurons, adding additional axons and dendrites.61 These axons and dendrites produce a type of “wiring” that links one cell to one or more additional cells allowing communication between the cells.62 Stimulated connections grow, unused connections are cut off.63 Other types of cells add to the growing brain. Specialized cells that act as “insulation” between the “wires” (axons and dendrites) increase in number through a process called myelination.64 Increasing number of glial cells provide a framework or structural support for neurons and blood vessels grow in number and length, forming supply lines to deliver oxygen and nutrients to the neurons.65 54 Stirling, supra note 14, at 668. 55 Id. 56 Id. at 669. 57 Shonkoff, supra note 29, at e326. 58 Rhosel K. Lenroot & Jay N. Giedd, Brain Development in Children and Adolescents: Insights from Anatomical Imaging, 30 NEUROSCIENCE & 13EHAV. REVS. 718, 720 (2006). 59 Child Welfare Info. G ateway, supra note 53, at 2-5. 60 D anya G laser, The Effects o f Child Maltreatment on the Developing Brain, 82 M ed .L e g a l J. 97, 100(2014). 61 Id. 62 Id. 63 Id. 64 Lenroot & Giedd, supra note 58, at 719. 65 Id. 208 Widener Law Review [Vol. 22:201 Childhood traumatic stress alters the process o f brain growth and development.66 The effects are greatest during early childhood, but development continues throughout adolescence and into the early adult years.67 Both genders experience these changes, but the effects of trauma on the brain appear to be greater for boys than girls.68 Traumatized children have smaller brains for their age and body size than children who have not experienced trauma.69 Some brain regions reduced in size/activity (anterior cingulate, corpus callosum, prefrontal cortex), while others increased in activity (dorsolateral cortex, amygdala).70 Although childhood traumatic stress can affect many regions of the brain, the primary effects are in structures whose function is to regulate emotion.71 The orbital prefrontal cortex and dorsolateral cortex are both involved in planning and judging the value of actions.72 Traumatic stress produces decreased activity o f the orbital prefrontal cortex and increased activity of the dorsolateral cortex, resulting in defective attention, planning and judgm ent.73 The anterior cingulate is involved in making quick judgments, morality, empathy for others, and impulse control.74 Traumatic stress produces decreased activity o f the anterior cingulate, resulting in poor impulse control and lack o f empathy.75 The corpus callosum allows for transfer o f information regarding emotions between the right and left sides of the brain.76 Traumatic stress decreases activity within the corpus callosum and this correlates with symptoms associated with post-traumatic stress disorder.77 Increased activity within the amygdala, the fear and rage center in the brain, occurs due to traumatic stress and is associated with poor emotional control.78 The amygdala, in cooperation with the hypothalamus, the pituitary gland, and the adrenal glands, is responsible for what most people recognize as a “stress response.”79 We recognize the stress response as certain changes in body sensations, including tensing o f muscles, dilated pupils, increased sweating, decreased saliva production, increased heart and respiration rate, and unusual sensations in the abdomen.80 This stress response prepares the body to respond to a 66 Shonkoft. supra note 29, at e236. Id. 68 Felitti, supra note 19, at 251. 69 Gamer, supra note 29, at S69. 70 Id. 71 Child Welfare Info . Gateway, supra note 53, at 5-6. 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. at 6. 77 C hild Welfare Info . Gateway, supra note 53, at 6. 78 Id. 79 Michael D. De Beilis, The Psychobiology o f Neglect, 10 C hild Maltreatment 150, 155 (2005). 67 2016] Domestic Violence, Children, and Toxic Stress 209 threat and to be ready for fight or flight.81 The relationship of the amygdala to the hypothalamic-pituitary-adrenal axis (HPA axis) is complex, but essentially, a sensory message is sent to the amygdala for interpretation.82 When the amygdala recognizes the message as a threat, it sends the message along to the hypothalamus, which in turn sends a message to the pituitary and adrenal glands.83 The principal response of the adrenal glands is the release of cortisol, the primary stress hormone, which prepares the body to encounter (fight) or to get away from (flight) the situation causing the stress.84 The secondary stress hormone epinephrine, or adrenalin, is also released.85 Once the stress is lessened, the high level of cortisol in the blood feeds back to the pituitary and the hypothalamus and the further release of cortisol is stopped.86 In an acute stress situation, the response turns on as needed and turns off when no longer needed.87 In an acute situation, if you encounter a bear in the woods, the bear runs away or you run away, and the response turns off after you feel safe. By contrast, in the chronic stress situation, the response does not turn off—the bear is always there, and the system runs out of control.88 C. Effects o f Toxic Stress at the Molecular and Genetic Level Childhood traumatic stress also makes alterations at the molecular and genetic levels.89 Genes contain DNA coded “instructions” for building proteins and directing the function of individual cells and organs, as well as total body function.90 The DNA instructions are read or “transcribed” in cells.91 Although each cell in the body contains the whole genome (complete set of instructions), individual cells may repeatedly use relatively few “pages” of instructions that relate to the specific function of that cell in the body.92 Naturally occurring gene variations (alleles) affect our risk of developing certain diseases, but they also influence how we respond to adverse events.93 Genes are our biological pre-programming, representing our “Nature” and the function of the genes are affected by the environment (Nurture).94 The expanding science of epigenetics defines and studies the effect of the 81 De Beilis, supra note 79, at 155. Id. 83 Id. 84 Id. 85 Shonkoff, supra note 29, at e326. 86 See id. 87 td. at e235-36. 82 88 Id. 89 Garner, supra note 29, at S68. 90 See N at ’l Inst. O f G en. Med. Set., U.S. D ept, P ub. N o . 10 – 662, T he N ew G enetics 4 (2010). 91 Id. 92 Id. 93 Garner, supra note 29, at S67. 94 Id. of Health & Human S ervs., N1H 210 Widener Law Review [Vol. 22:201 environment on gene function.95 Gene expression or gene function can be modified by experience without changing the actual DNA in the gene.96 Transcription, or the reading of specific genes, can be “turned o f f ’ by attachment of methyl groups (methylation) to the gene.97 Transcription can also be blocked by the folding o f genes around molecular structures known as histones.98 The good news is that these modifications allow cells to differentiate (change in function) and allow genes themselves to “learn” how to function in response to certain environmental changes.99 The bad news is that this process may lead to unwanted learning or unwanted functional changes. Epigenetic changes can affect many different types o f environmental stimuli and can affect genes controlling a number o f different body systems.100 Several animal studies have demonstrated that the interactions of the parents with offspring early in life can produce changes related to stress hormone regulation, resulting in dysregulation o f the HPA axis.101 In his study, Dr. Meaney intentionally traumatized a group o f mother rats and observed that the traumatized mother rats groomed their pups differently when compared with non-traumatized mother rats.102 Their pups (baby rats) grew up anxious and generally hyperresponsive to stimuli, acting as if they were responding to chronic stress.103 Different methylation patterns were found on the corticotropin receptor gene in these pups.104 This gene is involved in stress hormone regulation, specifically in the recognition that cortisol levels are elevated.105 When cortisol levels are elevated and the elevation cannot be recognized, the message is sent to release even more cortisol, resulting in persistent elevation of cortisol.106 The behaviors of the pups were caused by methylation uncoupling the normal negative feedback, leading to a persistence o f the stress response.107 Dr. Murgatroyd, in another study, repeatedly separated baby mice from their mothers, and this resulted in similar behaviors in the baby mice caused by sustained HPA axis activity associated with methylation abnormalities of 95 Bao-Zhu Zang ct al., Child Abuse and Epigenetic Mechanisms o f Disease Risk, 44 Am . J. Preventative M ed. 101, 101 (2013). 96 Sarah E. Romens et a t, Associations Between Early Life, Stress and Gene Methylation in Children, 86 CHILD D ev . 303, 303 (2015). 97 See id. 98 See Garner, supra note 29, at S68. 99 See id. 100 See Romens et. a t, supra note 96, at 303. 101 Johnson et. a t, supra note 29, at 323. 102 Michael J Meaney & Moshe Szyf, Environmental Programming o f Stress Responses Through DNA Methylation: Life at the Interface Between a Dynamic Environment and a Fixed Genome, 7 D ialogues C linical NEUROSCIENCE. 103, 106 (2005). 103 Id. 104 See id. 105 See id. 106 Id. 107 See id. at 116. 2016] Domestic Violence, Children, and Toxic Stress 2 11 another regulatory gene involved in the stress response. 108 In a third study, Drs. Brunton, Donadio, and Russell intentionally stressed pregnant female mice during late gestation. 109 The male offspring grew up to be more anxious as adults than the sons of non-stressed mothers. 110 This study demonstrates that the stress of the mother during fetal development permanently altered the methylation of the corticotropin receptor gene in these offspring, resulting in sustained hyperactivity of the stress response.1″ In the first study, the mothers’ stress behaviors caused the offspring to undergo epigenetic alteration to their environment during early life. 112 In the second study, stress of offspring removed from their mother’s care resulted in similar epigenetic changes. ” 3 In the third study, prenatal stress in the mother resulted in permanent epigenetic alteration of the stress hormone response in male offspring. ” 4 Therefore, through epigenetic “learning,” stresses in a parent or the offspring during early life may result in uncontrolled release of stress hormones in the offspring. Stresses during pregnancy may also result in similar epigenetic changes in male offspring. To bring this back to the topic of domestic violence, domestic violence toward a mother with young offspring, affecting her ability to raise her offspring, and domestic violence directed towards a pregnant mother may result in uncontrolled stress response in the offspring. In humans, several studies have documented similar effects on stress hormone regulation due to lack of appropriate caregiving among children raised in institutional care. ” 5 One study looked at suicides in humans exposed to child abuse and demonstrated methylation of another gene involved in the regulation of the stress response. 116 This gene also plays a part in turning off the production of cortisol when blood levels are elevated, resulting in persisting, uncontrolled stress response. 117 Early care-giving also plays a pivotal role in the maturation of immunity, and the HPA axis is important to the immune response. ” 8 Cytokines are chemical messengers that play an important role in immunity, and proinflammatory cytokines activate the HPA axis . 119 Cortisol produced in response to HPA axis activation helps turn off the 108 Chris Murgatroyd et al.. Dynamic DNA Methylation Programs Persistent Adverse Effects on Early-Life Stress, 12 NATURE NEUROSCIENCE. 1559, 1559(2009). luPaula J. Brunton et at. Sex Differences in Prenatally Programmed Anxiety Behavior in Rats: Differential Corticotropin-Releasing Hormone Receptor mRNA Expression in the Amygdaloid Complex, 14 Stress 634, 635 (2011). 110 Id. at 638. 1,1 Id. at 635. 112 See Meaney & Szyf, supra note 102, at 106. 113 Murgatroyd, supra note 108, at 1565. 114 Brunton, supra note 109, at 638. 115 Johnson, supra note 29, at 323. 116 See Patrick O. Mc Gowan et al., P romoter-W ide H ypermethylation of the Ribosomal RNA G ene P romoter in the S uicide Brain 5 (PLoS One, 2008). 117 Id.; see also Meaney & Szyf, supra note 102, at 106. 118 Johnson, supra note 29, at 322-23. U9 Id. 212 Widener Law Review [Vol. 22:201 immune response.120 Toxic stress produces dysregulation o f the HPA axis, and in turn this produces broad effects on the immune system and inflammatory processes related to immunity, including suppression of normal immune responses and persistence o f the inflammatory response after it is no longer needed.121 V . In t e r v e n t i o n for C h il d r e n E x p o s e d to D o m e s t i c V io l e n c e Children exposed to domestic violence, frequently experiencing concurrent child abuse and neglect, are caught in a vicious cycle associated with toxic stress. The toxic stress occurs while the child is experiencing the episode o f violence itself, in the period between the cycles of violence, and persists long after the last episode o f violence, affecting their future physical and mental health. Children experiencing toxic stress have major neuroendocrine, epigenetic, and behavioral changes which may persist long after the violent exposures end. In order to create appropriate interventions, we must recognize the role o f toxic stress and the additional adverse childhood experiences which are active in both the children and the adults experiencing domestic violence, and the frequently co-occurring abuse and neglect. The parenting skills o f both abusive and non-abusive parents in the domestic violence relationship are impaired and affect their ability to be proper parents. Social agencies and family courts must recognize the implications o f the effects o f toxic stress and the impaired parenting skills and implications for case management, child custody, and foster care needs o f these children.122 Children who experience toxic stress are more difficult to parent than typical children because o f their altered behaviors related to neuroendocrine and epigenetic changes.123 Unfortunately, some o f the damage produced by toxic stress may be permanent and prevention programs are essential to break the cycle.124 Fortunately, children are remarkably resilient, and reversal or at least control o f many o f the changes is possible, but earlier intervention and traumafocused intervention are important to accomplish this “repair.” Both the caretakers and those responsible for behavioral and social interventions need to recognize that behavioral and social interventions are needed to begin to reverse the effects o f domestic violence. We need to recognize that children can only be treated by proxy. Medications for symptom control and counseling a couple o f times a month for the child are not adequate. The children require a trauma-in formed and trauma-focused therapy. Caregivers for the children must be involved, safe, and supportive; otherwise interventions are likely to fail. Ensuring that every child has a caretaker who has the skills and support to be a safe, stable, and nurturing source can foster 120 Johnson, supra note 29, at 322-23. 121 Id. at 321-22. 122 See generally ShonkofT, supra note 29, at e228; 123 Stirling, supra note 14, at 668-70; see Am . A cad , of Pediatrics , supra note 37, at 11. 124 See generally Johnson, supra note 29. 2016] Domestic Violence, Children, and Toxic Stress 213 resilience and help transform toxic stress into tolerable stress. 125 The longer we delay the onset o f effective intervention, the more difficult the task becomes for society in managing the problems o f the children and the adults they will become. We are guilty o f many errors and many faults, hut our worst crime is abandoning the children, neglecting the fountain o f life. Many o f the things we need can wait. The child cannot. Right now is the time his hones are being formed, his blood is being made and his senses are being developed. To him we cannot answer ‘Tomorrow ’. His name is Today. 126 125 Johnson, supra note 29. 126 Gabriela Mistral, His Name is Today, Chilean educator, diplomat, and poet, Nobel Laureate 1945, reprinted in Leonard Davis, C hildren of the East xv (Janus Pub. Co. 1994). Copyright of Widener Law Review is the property of Widener Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s express written permission. However, users may print, download, or email articles for individual use. DOMESTIC VIOLENCE, CHILDREN, AND TOXIC STRESS A llan R. De J ong , M.D.’ “It is easier to build strong children than to repair broken men. Frederick Douglass “The child is the father o f the man. William Wordsworth ” ” I. Introduction It is estimated that approximately 1.5 million women and 830,000 men experience physical or sexual assault annually in the United States by intimate partners, commonly called domestic violence.’ In the United States, more than 15 million children live in families in which domestic violence occurs and almost half of these children witness severe violence in assaults of a parent.*12 As individuals and as a society, we need to face the reality that exposure of children to domestic violence undermines healthy physical and emotional development for the child, which places the child at increased risk of physical and emotional diseases and disabilities as adults.3 The effects of domestic violence on children include social consequences, physical consequences, and behavioral or neuroendocrine consequences that may result in transient, long-lasting or permanent harm to the child.4 The purpose of this discussion is to provide a medical background for the urgency for appropriate intervention in situations where domestic violence occurs in the presence of children. II. Overview of the Effects of Domestic V iolence on C hildren The social consequences for children include those related to the violence directed at their mother and the common association of domestic violence and child abuse. Studies indicate that families with either child abuse or * Dr. De Jong is the Medical Director of the Children at Risk Evaluation (CARE) Program at the Nemours – A. I. duPont Hospital for Children in Wilmington, Delaware and Clinical Professor of Pediatrics at the Sidney Kimmel Medical College of Thomas Jefferson University. For more than 35 years. Dr. De Jong has conducted medical evaluations for suspected victims of child abuse. 1Jonathan D. Thackeray et al., Clinical Report-Intimate Partner Violence: The Role o f the Pediatrician. 125 P ediatrics 1094.1094-95 (2010), http://pediatrics.aappublications.org/con tent/125/5/1094. 2 Megan Bair-Merritt ct al., Silent Victims-An Epidemic o f Childhood Exposure to Domestic Violence, 369 N ew Eng. M ed . 1673, 1673 (2010). http://www.nejm.org/doi/full/10. 1056/NEJMp 1307643. 3 Thackeray, supra note 1, at 1095; Bair-Merritt, supra note 2, at 1674. 4 Thackeray, supra note 1, at 1095. 201 202 Widener Law Review [Vol. 22:201 domestic violence have a 30-60% chance o f having both types o f violence occurring in the home.5 When the abuser, which oftentimes is the father or father figure, is removed from the household, another abusive father figure unfortunately may step in, which in turn leads to severe family disruption. Legal and social interventions may result in the removal o f the abuser from the home or the removal of the children from the home for variable periods of time. The physical consequences o f domestic violence include direct injury to the child associated with a domestic violence incident and indirect injury from the victim of domestic violence being unable to provide a safe, nurturing environment for the child. Direct injury may involve the fetus.6 Pregnancy may increase the risk o f domestic violence for women and domestic violence in this setting is associated with prematurity, low birth weight, and perinatal death.7 More commonly, we see direct injury to the child who is present with their mother during a domestic violence episode.8 Infants may be injured when the mother holds the infant in her arms as the abuser physically attacks her. The mothers may attempt to provide protection for the infants by holding them, or may think they can use the infant as a type of “shield” to stop the abusers physical assault. In either case, the child may suffer physical injuries. Some younger children may simply be unable to get out o f the way and are struck by physical blows or thrown objects during the domestic conflict. Older children and adolescents may try to intervene and are injured while trying to prevent injury to one o f both o f the adults. Any child in a violent environment may be injured as a proxy to the adult “victim” as the abusive adult tries to control the victim by hurting the child, which threatens to produce even greater injury to the child if the victim resists the abuser’s control.9 The behavioral and neuroendocrine consequences are the most significant consequences because these include generally poor social, emotional, and developmental growth o f the child with associated poor overall physical and mental health during adulthood.10 These consequences in infants may be manifested as increased irritability, increased emotional arousal, and less responsiveness to adults.” In the school-aged child, the effects are often manifested as anxiety, depression, attention problems, aggression, and withdrawal.12 Adolescents may exhibit similar symptoms as school-aged children, and they may show bullying and risk-taking behavior and experience dating violence.13 5 Thackeray, supra note I, at 1095. 6 Id. 7 Id. 8 Id. 9 Id.; see also Bair-Merritl, supra note 2, at 1673-74. 10 Thackeray, supra note 1, at 1095. 11 See id. ]2ld. 13Id. 2016] Domestic Violence, Children, and Toxic Stress III. T h e L if e l o n g C o n s e q u e n c e s o f C h i l d h o o d T r a u m a A dversity 203 and Over the last two decades we have learned a lot about the effects of trauma on children. This knowledge includes the effects seen in the developing child and subsequent, life-long effects found among adults who were subjected to abuse, neglect and domestic violence as children. Trauma is cumulative and dose-related – the greater the number of episodes of trauma experienced over time, the worse the effect.14 Early childhood trauma appears to have the greatest impact.15 Trauma early in life affects the child’s development of attachment, emotional regulation, and impulse control.16 Traumatized children act differently than non-traumatized children.17 Traumatized children have lower social competence; they have less empathy for others, can’t recognize their own emotions, and can’t recognize other’s emotions, resulting in impaired interpersonal relationships.18 The cumulative doserelated effect of childhood trauma can last a lifetime. Traumatized children are at increased risk of adverse health effects including physical and psychological health.19 Generally, we have learned that childhood adversity has lifelong consequences, and specifically, that adversity is strongly associated with unhealthy adult lifestyles and poor physical and mental health years later.20 In the mid-1990s, Drs. Felitti and Anda began a study of more than 17,000 adults, largely considered to be of middle class, who received heath care through the Kaiser Permanente Health System. These adults clearly demonstrated that Adverse Childhood Experiences (ACEs) can contribute significantly to negative adult physical and mental health outcomes.21 In their initial and subsequent studies, their list of adverse childhood events included: physical abuse, sexual abuse, emotional abuse, physical neglect, emotional neglect, domestic violence in home, household substance abuse, household mental illness, parental separation or divorce, and incarcerated household member.22 They found ACEs are common, with approximately 14 See John Stirling, Jr. et al., Understanding the Behavioral and Emotional Consequences o f Child Abuse, 122 P ediatrics 667,668 (2008), http://pediatrics.aappublications.org/content/ pcdiatrics/122/3/667. ful I.pdf. 15 See id. at 669-70. 16 Id. 17Id . 18 Id. 19 Vincent J. Felitti et al., Relationships o f Childhood Abuse and Household Dysfunction to Many o f the Leading Causes o f Death in Adults: The Adverse Childhood Experiences (ACE) Study, 15 A m . J. PREVENTATIVE M ed . 245, 251 (1998), http://www.ajpmonline.org/article/S07 49-3797(98)00017-8/pdf. 20 Id. 21 Id. at 245. 22 Shanta R. Dube et al., Childhood Abuse, Household Dysfunction, and the Risk o f Attempted Suicide Throughout the Life Span: Findings from the Adverse Childhood Experience Study, 286 J ama P ediatrics 3089, 3090 (2001), http://jama.jamanetwork.com/art icle.aspx?articleid= 194504. 204 Widener Law Review [Vol. 22:201 two-thirds o f their patients had at least one ACE and one-fifth reported three or more ACEs.23 Adults who reported exposure to domestic violence during childhood were 6 times more likely to also experience emotional abuse, 4.8 times more likely to also experience physical abuse, and 2.6 times more likely to also experience sexual abuse.24 As the investigators reviewed the health o f their patients, they found the effects of the ACES were “dose-related”; the more ACEs the individual reported the worse were their physical and mental health outcomes.25 A number o f the poor outcomes appeared related to increased risk taking behaviors demonstrated by patients with ACEs, including substance abuse, alcoholism, smoking, and risky sexual behaviors.26 O f particular importance was the association o f higher ACE scores with increased risk o f being either a victim or perpetrator of interpersonal violence.27 Less intuitive were negative health outcomes that appear to be less directly mediated through health risk behaviors including chronic heart disease, liver disease and autoimmune disorders.28 Over the course o f the last two decades, it has become clear that the negative health outcomes associated with ACEs are mediated through a combination o f increased heath risk behaviors, the effects o f chronic stress on the brain, the endocrine system, the immune system and the function o f genes.29 Adverse childhood experiences are associated with poorer physical and mental health as adults. Thus, in order to produce healthier adults, we need to make healthier children, and to do that we need to address the role o f chronic stress. IV. T h e R o l e of C h r o n ic St r e s s or T o x ic St r e s s It is important to recognize that not all stress is bad. There are three categories of stress experience: positive stress, tolerable stress, and toxic stress?0 Positive stress is involved in many common experiences and 23 Dube, supra note 22, at 3092. 24 Thackeray, supra note 1, at 1095. 25 Felitti, supra note 19, at 250. 26 Robert F. Anda et al.. The Enduring Effects o f Abuse and Related Adverse Experiences in Childhood: A Convergence o f Evidence From Neurobiology and Epidemiology, 256 EUR. A rchives O f P sychiatry & C linical, N euroscience 174, 181 (2006), http://link.springer. com/article/10.1007/s00406-005-0624-4. 27 Id at 178-79. 28 Felitti, supra note 19, at 251. 29 Comm, on Psychosocial Aspects of the Child and Family IHealth et a t, Early Childhood Adversity, Toxic Stress and the Role o f the Pediatrician: Translating Developmental Science Into Lifelong Health, 129 P ediatrics e224, e225 (2011), http://pediatrics.aappublications.org/ content/early/2011/12/21 /peds.2011-2662; Jack P. Shonkoff et al., The Lifelong Effects o f Early Childhood Adversity and Toxic Stress, 129 PEDIATRICS 1, e235-e237 (2012); Sara B. Johnson et al., The Science o f Early Life Toxic Stress fo r Pediatric and Advocacy, 131 P ediatrics 3 19, 325 (2013), http://pcdiatrics.aappublications.Org/content/131/2/319; Andrew S. Gamer, Home Visiting and the Biology O f Toxic Stress: Opportunities to Address Early Childhood Adversity, 132 P ediatrics S65, S69 (2013), http://pediatrics.aappublications.org/ content/] 32/Supplemcnt 2/S65. 30 Shonkoff, supra note 29, at e325. 2016] Domestic Violence, Children, and Toxic Stress 205 interactions.31 The body’s response to positive stress is a brief increase in heart rate and mild transient elevation of stress hormone level.’2 These responses tend to increase our focus or concentration and improve performance, and in certain cases, they can be protective from physical trauma.33 Tolerable stress involves more serious and more prolonged activation of stress hormones in response to a stressful situation, but the effects of the stress are buffered by supportive relationships with family, friends or other contacts.34 Toxic stress involves prolonged activation of the stress response systems in the absence of protective relationships.35 Prolonged elevation of the stress response can result in changes to the brain and other organs, and the ability of the body to regulate the response to stress.36 Toxic stress in children who experience traumatic events is often called child traumatic stress.37 So how do we define child traumatic stress? Child traumatic stress is “the physical and emotional responses of a child to events that threaten the life or physical integrity of the child or of someone critically important to the child (such as a parent or sibling).”38 These traumatic events overwhelm a child’s capacity to cope and elicit feelings of terror, poweriessness, and out-of­ control physiological arousal of the body’s stress response.39 The effects or impact of the trauma are dependent on factors related to the child, the family and the situation. Traumatic stress may be an acute response to a single traumatic event (natural disasters, illness, accident) or a chronic response to recurring or cumulative traumatic events (war, abuse, neglect).40 A critical factor for the developing child is that events that threaten their safety or are frightening can lead to changes in the way the body reacts initially, and these changes may persist.41 The critical issue regarding traumatic stress is whether it produces a longstanding physiologic change in the individual.42 So to summarize: 1. Three interrelated categories of ACEs – child abuse (physical, sexual, and emotional), neglect (physical and emotional), and exposure to domestic violence/interpersonal violence – are sources of traumatic stress for children.43 31 Shonkoff, supra note 29, at e325. 32 Id. 33 Id 34 Id. 35 Id. at e235-36. 36 Id. at e236. 37 See Am . Acad , of Pediatrics, Hei.ping Foster A doptive F amilies Cope with T rauma 4 (2013), https://www.aap.org/en-us/advocacy-and-policy/aap-health-initiatives/hea llhy-fosler-care-america/Documents/Guide.pdf. 38 Id. 39 Id. 40 Id. 41 Shonkoff, supra note 29, at e326. 42 See id. at e237-e238. 43 Id. at e326. 206 Widener Law Review [Vol. 22:201 2. Traumatic stress becomes toxic stress when it makes persisting changes in the way the body responds to stress.44 3. Children are more susceptible to these changes, and these changes play a role in physical and mental health outcomes later in life.45 4. Toxic stress produces changes in multiple body systems. Major changes can be found in social/behavioral functions, the neuroendocrine system (brain structure and stress hormone regulation), and in molecular function (genetics, epigenetics, and immune function). These systems are inter-related and changes in one system can result in changes in another. Resilience, or the ability to recover from a stress, may not be the same across all systems.46 A. Effects o f Toxic Stress on the Social/Behavioral System The social/ behavioral systems are often the most easily detected changes. The three major behavioral goals of child development are attachment, regulation, and cognition.47 Attachment is the ability to develop a relationship with at least one individual.48 This primary attachment opens the door to establishing relationships with others. Regulation requires learning to effectively control your feelings.49 Cognition is required to allow for the development of an informational base and to use it for decision making and problem solving.50 Impaired attachment to the parents or caretaker during early childhood promotes poor connection to, relationships with, and distrust of all adults.51 Early childhood development involves back and forth exchanges between parent and child, each adjusting their responses to the other. Regulation of exchanges is impaired by lack of normal parent-child interactions, and in the face of persistent fear or alert states induced by toxic stress, the children develop less empathy for others and have difficulty in recognizing their own and other’s emotions.52 Cognition is impaired, as toxic stress results in the child having a poor working memory, an inability to control impulsive behavior, and poor cognitive flexibility, causing impaired organizational skills.51 When something frightening happens, the brain makes certain you do not forget it, and we remember these events in a special way. We remember the pattern of sensations involving the sights, the sounds, the 44 Shonkoff, supra note 29, at e238. 45 Gamer, supra note 29, at S68-69. 46 A m . Acad, of P ediatrics, supra note 37, at 2-3. 47 Kristine Jentoft Kinniburgh et a!., Attachment, Self-Regulation, and Competency, 35 P sychiatric A nnals 424,429. 48 Id. 49 Id. 50 Id. 51 Stirling, supra note 14, at 669-70. 52 Id. 53 CHILD W elfare Info. G ateway, Understanding the Effect o f Maltreatment on Brain Development 6-8 (2015), http://www.childwelfare.gov/pubs/issue-briefs/brain-development/. 2016] Domestic Violence, Children, and Toxic Stress 207 smells and our feelings all mixed together.54 Exposure to any one of these “trigger” sensations can make the child feel like the frightening experience is happening again. Common behaviors seen in children living with toxic stress include: “hair trigger” emotional responses; hyper-vigilance; frequent aggression; poor impulse control; difficulty regulating their arousal; reluctance to turn to others for help (distrust); inability to discuss their feelings; detachment; withdrawal; and insecurity over food, safety; or relationships and therefore are very hard to parent.55 Furthermore, these children are labeled “behavior problems” and may end up being social pariahs and difficult to educate.56 B. Effects o f Toxic Stress on the Brain and Neuroendocrine System The behaviors observed in children exposed to toxic stress originate from the changes induced in the structure and function of the brain and the neuroendocrine system.57 To understand how this happens, we must first consider how the brain normally grows. Brain growth is very rapid during the first two years of life, achieving 75-80% of its adult weight by age two, and reaches 90-95% of its adult weight by age eight.58 The plasticity of the brain, the ability of the brain to change structurally in response to experience, is greatest during the first two years of life.59 At birth, the brain contains most of the neurons or “nerve cells” it will ever contain.60 Neurons typically “grow” by increasing the connections between neurons, adding additional axons and dendrites.61 These axons and dendrites produce a type of “wiring” that links one cell to one or more additional cells allowing communication between the cells.62 Stimulated connections grow, unused connections are cut off.63 Other types of cells add to the growing brain. Specialized cells that act as “insulation” between the “wires” (axons and dendrites) increase in number through a process called myelination.64 Increasing number of glial cells provide a framework or structural support for neurons and blood vessels grow in number and length, forming supply lines to deliver oxygen and nutrients to the neurons.65 54 Stirling, supra note 14, at 668. 55 Id. 56 Id. at 669. 57 Shonkoff, supra note 29, at e326. 58 Rhosel K. Lenroot & Jay N. Giedd, Brain Development in Children and Adolescents: Insights from Anatomical Imaging, 30 NEUROSCIENCE & 13EHAV. REVS. 718, 720 (2006). 59 Child Welfare Info. G ateway, supra note 53, at 2-5. 60 D anya G laser, The Effects o f Child Maltreatment on the Developing Brain, 82 M ed .L e g a l J. 97, 100(2014). 61 Id. 62 Id. 63 Id. 64 Lenroot & Giedd, supra note 58, at 719. 65 Id. 208 Widener Law Review [Vol. 22:201 Childhood traumatic stress alters the process o f brain growth and development.66 The effects are greatest during early childhood, but development continues throughout adolescence and into the early adult years.67 Both genders experience these changes, but the effects of trauma on the brain appear to be greater for boys than girls.68 Traumatized children have smaller brains for their age and body size than children who have not experienced trauma.69 Some brain regions reduced in size/activity (anterior cingulate, corpus callosum, prefrontal cortex), while others increased in activity (dorsolateral cortex, amygdala).70 Although childhood traumatic stress can affect many regions of the brain, the primary effects are in structures whose function is to regulate emotion.71 The orbital prefrontal cortex and dorsolateral cortex are both involved in planning and judging the value of actions.72 Traumatic stress produces decreased activity o f the orbital prefrontal cortex and increased activity of the dorsolateral cortex, resulting in defective attention, planning and judgm ent.73 The anterior cingulate is involved in making quick judgments, morality, empathy for others, and impulse control.74 Traumatic stress produces decreased activity o f the anterior cingulate, resulting in poor impulse control and lack o f empathy.75 The corpus callosum allows for transfer o f information regarding emotions between the right and left sides of the brain.76 Traumatic stress decreases activity within the corpus callosum and this correlates with symptoms associated with post-traumatic stress disorder.77 Increased activity within the amygdala, the fear and rage center in the brain, occurs due to traumatic stress and is associated with poor emotional control.78 The amygdala, in cooperation with the hypothalamus, the pituitary gland, and the adrenal glands, is responsible for what most people recognize as a “stress response.”79 We recognize the stress response as certain changes in body sensations, including tensing o f muscles, dilated pupils, increased sweating, decreased saliva production, increased heart and respiration rate, and unusual sensations in the abdomen.80 This stress response prepares the body to respond to a 66 Shonkoft. supra note 29, at e236. Id. 68 Felitti, supra note 19, at 251. 69 Gamer, supra note 29, at S69. 70 Id. 71 Child Welfare Info . Gateway, supra note 53, at 5-6. 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. at 6. 77 C hild Welfare Info . Gateway, supra note 53, at 6. 78 Id. 79 Michael D. De Beilis, The Psychobiology o f Neglect, 10 C hild Maltreatment 150, 155 (2005). 67 2016] Domestic Violence, Children, and Toxic Stress 209 threat and to be ready for fight or flight.81 The relationship of the amygdala to the hypothalamic-pituitary-adrenal axis (HPA axis) is complex, but essentially, a sensory message is sent to the amygdala for interpretation.82 When the amygdala recognizes the message as a threat, it sends the message along to the hypothalamus, which in turn sends a message to the pituitary and adrenal glands.83 The principal response of the adrenal glands is the release of cortisol, the primary stress hormone, which prepares the body to encounter (fight) or to get away from (flight) the situation causing the stress.84 The secondary stress hormone epinephrine, or adrenalin, is also released.85 Once the stress is lessened, the high level of cortisol in the blood feeds back to the pituitary and the hypothalamus and the further release of cortisol is stopped.86 In an acute stress situation, the response turns on as needed and turns off when no longer needed.87 In an acute situation, if you encounter a bear in the woods, the bear runs away or you run away, and the response turns off after you feel safe. By contrast, in the chronic stress situation, the response does not turn off—the bear is always there, and the system runs out of control.88 C. Effects o f Toxic Stress at the Molecular and Genetic Level Childhood traumatic stress also makes alterations at the molecular and genetic levels.89 Genes contain DNA coded “instructions” for building proteins and directing the function of individual cells and organs, as well as total body function.90 The DNA instructions are read or “transcribed” in cells.91 Although each cell in the body contains the whole genome (complete set of instructions), individual cells may repeatedly use relatively few “pages” of instructions that relate to the specific function of that cell in the body.92 Naturally occurring gene variations (alleles) affect our risk of developing certain diseases, but they also influence how we respond to adverse events.93 Genes are our biological pre-programming, representing our “Nature” and the function of the genes are affected by the environment (Nurture).94 The expanding science of epigenetics defines and studies the effect of the 81 De Beilis, supra note 79, at 155. Id. 83 Id. 84 Id. 85 Shonkoff, supra note 29, at e326. 86 See id. 87 td. at e235-36. 82 88 Id. 89 Garner, supra note 29, at S68. 90 See N at ’l Inst. O f G en. Med. Set., U.S. D ept, P ub. N o . 10 – 662, T he N ew G enetics 4 (2010). 91 Id. 92 Id. 93 Garner, supra note 29, at S67. 94 Id. of Health & Human S ervs., N1H 210 Widener Law Review [Vol. 22:201 environment on gene function.95 Gene expression or gene function can be modified by experience without changing the actual DNA in the gene.96 Transcription, or the reading of specific genes, can be “turned o f f ’ by attachment of methyl groups (methylation) to the gene.97 Transcription can also be blocked by the folding o f genes around molecular structures known as histones.98 The good news is that these modifications allow cells to differentiate (change in function) and allow genes themselves to “learn” how to function in response to certain environmental changes.99 The bad news is that this process may lead to unwanted learning or unwanted functional changes. Epigenetic changes can affect many different types o f environmental stimuli and can affect genes controlling a number o f different body systems.100 Several animal studies have demonstrated that the interactions of the parents with offspring early in life can produce changes related to stress hormone regulation, resulting in dysregulation o f the HPA axis.101 In his study, Dr. Meaney intentionally traumatized a group o f mother rats and observed that the traumatized mother rats groomed their pups differently when compared with non-traumatized mother rats.102 Their pups (baby rats) grew up anxious and generally hyperresponsive to stimuli, acting as if they were responding to chronic stress.103 Different methylation patterns were found on the corticotropin receptor gene in these pups.104 This gene is involved in stress hormone regulation, specifically in the recognition that cortisol levels are elevated.105 When cortisol levels are elevated and the elevation cannot be recognized, the message is sent to release even more cortisol, resulting in persistent elevation of cortisol.106 The behaviors of the pups were caused by methylation uncoupling the normal negative feedback, leading to a persistence o f the stress response.107 Dr. Murgatroyd, in another study, repeatedly separated baby mice from their mothers, and this resulted in similar behaviors in the baby mice caused by sustained HPA axis activity associated with methylation abnormalities of 95 Bao-Zhu Zang ct al., Child Abuse and Epigenetic Mechanisms o f Disease Risk, 44 Am . J. Preventative M ed. 101, 101 (2013). 96 Sarah E. Romens et a t, Associations Between Early Life, Stress and Gene Methylation in Children, 86 CHILD D ev . 303, 303 (2015). 97 See id. 98 See Garner, supra note 29, at S68. 99 See id. 100 See Romens et. a t, supra note 96, at 303. 101 Johnson et. a t, supra note 29, at 323. 102 Michael J Meaney & Moshe Szyf, Environmental Programming o f Stress Responses Through DNA Methylation: Life at the Interface Between a Dynamic Environment and a Fixed Genome, 7 D ialogues C linical NEUROSCIENCE. 103, 106 (2005). 103 Id. 104 See id. 105 See id. 106 Id. 107 See id. at 116. 2016] Domestic Violence, Children, and Toxic Stress 2 11 another regulatory gene involved in the stress response. 108 In a third study, Drs. Brunton, Donadio, and Russell intentionally stressed pregnant female mice during late gestation. 109 The male offspring grew up to be more anxious as adults than the sons of non-stressed mothers. 110 This study demonstrates that the stress of the mother during fetal development permanently altered the methylation of the corticotropin receptor gene in these offspring, resulting in sustained hyperactivity of the stress response.1″ In the first study, the mothers’ stress behaviors caused the offspring to undergo epigenetic alteration to their environment during early life. 112 In the second study, stress of offspring removed from their mother’s care resulted in similar epigenetic changes. ” 3 In the third study, prenatal stress in the mother resulted in permanent epigenetic alteration of the stress hormone response in male offspring. ” 4 Therefore, through epigenetic “learning,” stresses in a parent or the offspring during early life may result in uncontrolled release of stress hormones in the offspring. Stresses during pregnancy may also result in similar epigenetic changes in male offspring. To bring this back to the topic of domestic violence, domestic violence toward a mother with young offspring, affecting her ability to raise her offspring, and domestic violence directed towards a pregnant mother may result in uncontrolled stress response in the offspring. In humans, several studies have documented similar effects on stress hormone regulation due to lack of appropriate caregiving among children raised in institutional care. ” 5 One study looked at suicides in humans exposed to child abuse and demonstrated methylation of another gene involved in the regulation of the stress response. 116 This gene also plays a part in turning off the production of cortisol when blood levels are elevated, resulting in persisting, uncontrolled stress response. 117 Early care-giving also plays a pivotal role in the maturation of immunity, and the HPA axis is important to the immune response. ” 8 Cytokines are chemical messengers that play an important role in immunity, and proinflammatory cytokines activate the HPA axis . 119 Cortisol produced in response to HPA axis activation helps turn off the 108 Chris Murgatroyd et al.. Dynamic DNA Methylation Programs Persistent Adverse Effects on Early-Life Stress, 12 NATURE NEUROSCIENCE. 1559, 1559(2009). luPaula J. Brunton et at. Sex Differences in Prenatally Programmed Anxiety Behavior in Rats: Differential Corticotropin-Releasing Hormone Receptor mRNA Expression in the Amygdaloid Complex, 14 Stress 634, 635 (2011). 110 Id. at 638. 1,1 Id. at 635. 112 See Meaney & Szyf, supra note 102, at 106. 113 Murgatroyd, supra note 108, at 1565. 114 Brunton, supra note 109, at 638. 115 Johnson, supra note 29, at 323. 116 See Patrick O. Mc Gowan et al., P romoter-W ide H ypermethylation of the Ribosomal RNA G ene P romoter in the S uicide Brain 5 (PLoS One, 2008). 117 Id.; see also Meaney & Szyf, supra note 102, at 106. 118 Johnson, supra note 29, at 322-23. U9 Id. 212 Widener Law Review [Vol. 22:201 immune response.120 Toxic stress produces dysregulation o f the HPA axis, and in turn this produces broad effects on the immune system and inflammatory processes related to immunity, including suppression of normal immune responses and persistence o f the inflammatory response after it is no longer needed.121 V . In t e r v e n t i o n for C h il d r e n E x p o s e d to D o m e s t i c V io l e n c e Children exposed to domestic violence, frequently experiencing concurrent child abuse and neglect, are caught in a vicious cycle associated with toxic stress. The toxic stress occurs while the child is experiencing the episode o f violence itself, in the period between the cycles of violence, and persists long after the last episode o f violence, affecting their future physical and mental health. Children experiencing toxic stress have major neuroendocrine, epigenetic, and behavioral changes which may persist long after the violent exposures end. In order to create appropriate interventions, we must recognize the role o f toxic stress and the additional adverse childhood experiences which are active in both the children and the adults experiencing domestic violence, and the frequently co-occurring abuse and neglect. The parenting skills o f both abusive and non-abusive parents in the domestic violence relationship are impaired and affect their ability to be proper parents. Social agencies and family courts must recognize the implications o f the effects o f toxic stress and the impaired parenting skills and implications for case management, child custody, and foster care needs o f these children.122 Children who experience toxic stress are more difficult to parent than typical children because o f their altered behaviors related to neuroendocrine and epigenetic changes.123 Unfortunately, some o f the damage produced by toxic stress may be permanent and prevention programs are essential to break the cycle.124 Fortunately, children are remarkably resilient, and reversal or at least control o f many o f the changes is possible, but earlier intervention and traumafocused intervention are important to accomplish this “repair.” Both the caretakers and those responsible for behavioral and social interventions need to recognize that behavioral and social interventions are needed to begin to reverse the effects o f domestic violence. We need to recognize that children can only be treated by proxy. Medications for symptom control and counseling a couple o f times a month for the child are not adequate. The children require a trauma-in formed and trauma-focused therapy. Caregivers for the children must be involved, safe, and supportive; otherwise interventions are likely to fail. Ensuring that every child has a caretaker who has the skills and support to be a safe, stable, and nurturing source can foster 120 Johnson, supra note 29, at 322-23. 121 Id. at 321-22. 122 See generally ShonkofT, supra note 29, at e228; 123 Stirling, supra note 14, at 668-70; see Am . A cad , of Pediatrics , supra note 37, at 11. 124 See generally Johnson, supra note 29. 2016] Domestic Violence, Children, and Toxic Stress 213 resilience and help transform toxic stress into tolerable stress. 125 The longer we delay the onset o f effective intervention, the more difficult the task becomes for society in managing the problems o f the children and the adults they will become. We are guilty o f many errors and many faults, hut our worst crime is abandoning the children, neglecting the fountain o f life. Many o f the things we need can wait. The child cannot. Right now is the time his hones are being formed, his blood is being made and his senses are being developed. To him we cannot answer ‘Tomorrow ’. His name is Today. 126 125 Johnson, supra note 29. 126 Gabriela Mistral, His Name is Today, Chilean educator, diplomat, and poet, Nobel Laureate 1945, reprinted in Leonard Davis, C hildren of the East xv (Janus Pub. Co. 1994). Copyright of Widener Law Review is the property of Widener Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s express written permission. However, users may print, download, or email articles for individual use. ESSAY PROTECTING, RESTORING, IMPROVING: INCORPORATING THERAPEUTIC JURISPRUDENCE AND RESTORATIVE JUSTICE CONCEPTS INTO CIVIL DOMESTIC VIOLENCE CASES PETER JOHNSEN† & ELIA ROBERTSON†† INTRODUCTION …………………………………………………………………..1558 I. BACKGROUND ……………………………………………………………….. 1561 A. Traditional Civil Remedies for Domestic Violence Cases ……………….1561 1. Protection Orders Generally ……………………………………….1561 2. The Pennsylvania Protection from Abuse Act: A Case Study………………………………………………………….. 1562 B. Unique Challenges Presented by Protection Order Proceedings ………. 1565 1. Congested Court Dockets and Inadequate Resources ……… 1565 2. Unrepresented Litigants …………………………………………… 1566 3. Challenging Subject Matter ………………………………………. 1568 C. Courts’ Mishandling of Civil Domestic Violence Cases………………… 1569 II. THERAPEUTIC JURISPRUDENCE AND RESTORATIVE JUSTICE: A PARADIGM SHIFT …………………………………………. 1570 A. The Comprehensive Law Movement …………………………………….. 1570 1. Therapeutic Jurisprudence …………………………………………. 1571 2. Restorative Justice …………………………………………………….1573 a. Restorative Justice Defined ……………………………………….1573 b. Restorative Justice Processes ………………………………………1574 c. Restorative Justice Outcomes……………………………………. 1576 † Peter Johnsen works as an associate at Shemtob Law, P.C., a family law firm located in Blue Bell, Pennsylvania. †† Elia Robertson is an Assistant District Attorney at the Philadelphia District Attorney’s Office. The authors would each like to thank their parents, Professor Susan Brooks, and the members and staff of the University of Pennsylvania Law Review. (1557) 1558 University of Pennsylvania Law Review [Vol. 164: 1557 B. Therapeutic Jurisprudence and Restorative Justice as Counterparts …..1577 III. OPPOSITION TO ALTERNATIVE APPROACHES TO DOMESTIC VIOLENCE INTERVENTION ……………………………………………….1578 A. Private Reconciliations ……………………………………………………… 1578 B. Victim–Offender Collaboration ……………………………………………. 1579 C. Community Involvement …………………………………………………… 1580 IV. REFRAMING “JUSTICE” IN PROTECTION ORDER PROCEEDINGS … 1581 A. Overcoming Criticisms: Why Therapeutic Approaches Prevail……….. 1581 B. Common Ground Shared by Current and Alternative Approaches …. 1582 C. Coming to an Agreement: Therapeutic Alternatives as a Supplement to Pennsylvania’s Protection from Abuse Act…………….. 1583 CONCLUSION ………………………………………………………………………1585 INTRODUCTION Domestic violence1 is generally seen through the lens of the criminal justice system, but such cases also pervade the civil justice system. All fifty states currently afford domestic violence victims the right to petition for civil protection orders.2 Through a civil protection order, a victim may obtain an injunction, which offers several forms of relief outside of criminal prosecution.3 While civil protection orders should guard against further abuse, both their obtainability and their effectiveness are questionable. The experiences of Petitioners One and Two4 illustrate some of the underlying issues surrounding civil protection order proceedings: Petitioner One, a twenty-four-year-old female, has dated Respondent One for two years. They have a volatile relationship. One night, Respondent confronted Petitioner about suspicious text messages on her cell phone. He grabbed her by her arms, shook her, screamed at her, and threatened to hurt her. Petitioner filed a petition for a civil protection order against Respondent. On the day of the scheduled hearing, Petitioner informed the court that she no 1 For purposes of this Essay, the term “domestic violence” refers to a pattern of behavior—including physical, sexual, verbal, and emotional abuse—used by one partner against another in an intimate relationship. Margeret E. Johnson, Redefining Harm, Reimagining Remedies, and Reclaiming Domestic Violence Law, 42 U.C. DAVIS L. REV. 1107, 1116 (2009). 2 See Laurie S. Kohn, What’s So Funny About Peace, Love, and Understanding? Restorative Justice as a New Paradigm for Domestic Violence Intervention, 40 SETON HALL L. REV. 517, 519-20 n.3 (2010) (citing each state’s respective statute authorizing protection orders). 3 Id. at 519-20. 4 These examples have been adapted from the experiences of one of the author’s clinical clients. As a law student, Elia Robertson spent a semester as a clinical student at Philadelphia Legal Assistance, where she represented low-income clients in their domestic abuse and child custody matters, including protection order proceedings. 2016] Protecting, Restoring, Improving 1559 longer wished to pursue a protection order against Respondent and withdrew her petition. Petitioner and Respondent left the courthouse together.5 Petitioner Two is a thirty-three-year-old female. She and Respondent Two recently divorced. They have one child together. Respondent has physically abused Petitioner in the past. Petitioner now seeks custody of their child. She recently filed a petition for a protection order on behalf of the child. On the day of the scheduled hearing, both parties entered the courtroom. Respondent hired an attorney. Petitioner did not. After closing arguments, the judge ruled that he did not find the Petitioner’s testimony credible and dismissed her petition for failing to present adequate evidence of abuse.6 Neither petitioner left the process with what she sought to obtain—a protection order.7 Domestic violence continues to plague the United States despite the availability of civil remedies.8 Protection order petitions are filed at an alarming rate9 and the number of women who become victims of violent 5 Notes of Elia Robertson from Philadelphia Family Court proceedings (Jan.–May 2015) (on file with author). 6 Id. 7 Scholars and practitioners note the difficulties that domestic abuse victims face in obtaining civil protection orders. See, e.g., Jane H. Aiken & Jane C. Murphy, Evidence Issues in Domestic Violence Civil Cases, 34 FAM. L.Q. 43, 44 (2000) (noting that the difficulty of proving domestic violence in court is a major barrier to the effectiveness of civil protection orders). As a substantive matter, proving abuse in court may be difficult because survivors are often the only witnesses. Id. From a practical standpoint, even when survivors report abusive incidents, fear of retribution might undermine their willingness to testify in court. Cf. Suraji R. Wagage, When the Consequences Are Life and Death: Pretrial Detention for Domestic Violence Offenders, 7 DREXEL L. REV. 195, 206 (2014) (“Victims’ desire not to press charges or testify, stemming from fear of or attachment to their abusers, ha[s] frequently hindered . . . prosecution.”). For certain minority demographics, these problems are compounded by social and economic considerations. See Sudha Shetty & Janice Kaguyutan, Immigrant Victims of Domestic Violence: Cultural Challenges and Available Legal Protections, NAT’L RESOURCE CTR. ON DOMESTIC VIOLENCE (2002), http://www.vawnet.org/applied-research-papers/print-document. php?doc_id=384 [https://perma.cc/4SPW-J45V] (noting that many abused immigrant women— alienated from family and other support networks—must tolerate and endure their abusive husbands, who are their sole means of support and livelihood). 8 See PATRICIA TJADEN & NANCY THOENNES, OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE, NCJ 181867, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE 10 (2000), https://www.ncjrs.gov/pdffiles1/nij/181867.pdf [https://perma.cc/ D7RW-BEA2] (finding that 22% of surveyed women report being physically assaulted by an intimate partner at some point in their lifetime); Will Dunham, Quarter of U.S. Women Suffer Domestic Violence: CDC, REUTERS (Feb. 7, 2008), http://www.reuters.com/article/2008/02/07/us-violence-domesticusa-idUSN0737896320080207 [https://perma.cc/56RP-ELS4] (citing a 2005 Center for Disease Control study in which 23.6% of women reported being a victim of intimate partner violence and a 1995 government survey in which 24.8% of women reported suffering domestic violence). 9 See, e.g., Domestic Violence in the District of Columbia: 2014 Statistical Snapshot, DCCOALITION AGAINST DOMESTIC VIOLENCE, http://dccadv.org/img/fck/file/Domestic%20Violence%20in% 20the%20District%20of%20Columbia%202014.pdf [https://perma.cc/4EZE-GE6U] (last visited Apr. 15, 2016) (reporting that petitions for civil protection orders increased 7% from 2012 to 2014). 1560 University of Pennsylvania Law Review [Vol. 164: 1557 crime by intimate partners each year remains staggeringly high.10 In light of these statistics, many scholars have criticized the current civil response to domestic violence as being ineffective.11 Suggestions for improvements range from strengthening the criminal justice system’s involvement12 to eliminating formal judicial systems and returning to community-based interventions.13 This Essay calls attention to various deficiencies underlying the civil protection order process. It argues that the parties in the above scenarios would have benefited from a more holistic and less adversarial approach to their disputes. Specifically, this Essay advocates for an alternative approach to protection order proceedings that draws on two legal theories, therapeutic jurisprudence14 and restorative justice.15 This approach better addresses litigants’ needs by acknowledging that complex relationships permeate domestic violence incidents. Such an approach could alleviate systemic issues currently facing family courts and have a lasting, positive impact on entire communities. This Essay uses the Pennsylvania Protection from Abuse Act and the Philadelphia Family Court Division as a template to highlight the shortcomings of current family court systems. It then offers a solution to supplement and improve upon current civil protection order proceedings. Part I of this Essay sets forth the current civil response to domestic violence cases, including Pennsylvania’s Protection from Abuse Act. Part II provides an overview of both therapeutic jurisprudence and restorative justice and their relationship to one another. Part III outlines the main arguments against therapeutic jurisprudence and restorative justice as alternative responses to domestic violence. Part IV tackles those criticisms and argues that both theories can successfully coexist within the current paradigm. It highlights the parallel goals of the current system and the two approaches and explores their potential inclusion in existing statutes, such as Pennsylvania’s Protection from Abuse Act. The Essay concludes by discussing how the case 10 Each year, about 588,490 women are victims of violence by an intimate partner. CALLIE MARIE RENNISON, OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE, NCJ 197838, BUREAU OF JUSTICE STATISTICS CRIME DATA BRIEF: INTIMATE PARTNER VIOLENCE, 1993–2001, at 1 tbl.1 (2003), http://www.bjs.gov/content/pub/pdf/ipv01.pdf [https://perma.cc/C6CS-VGFR]. 11 See, e.g., Elizabeth L. MacDowell, VAWA @ 20: Improving Civil Legal Assistance for Ending Gender Violence, CUNY L. REV. FOOTNOTE FORUM (Nov. 21, 2014), http://www.cunylawreview.org/vawa-20improving-civil-legal-assistance-for-ending-gender-violence-by-elizabeth-macdowell [https://perma.cc/ M3QF-CMT4] (discussing the failure of the Violence Against Women Act to address the limitations of civil responses to domestic violence). 12 See, e.g., Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 WM. & MARY L. REV. 1505, 1507-08 (1998) (arguing that the criminal justice system’s “preference for treatment as punishment for domestic violence offenders is misguided”). 13 See infra notes 155–56 and accompanying text. 14 See infra subsection II.A.1. 15 See infra subsection II.A.2. 2016] Protecting, Restoring, Improving 1561 studies of Petitioner One and Two could benefit from therapeutic jurisprudence and restorative justice principles. I. BACKGROUND The current civil response to domestic violence cases consists primarily of civil protection order proceedings. This Part provides a brief history of civil protection order statutes and a detailed explanation of Pennsylvania’s Protection from Abuse Act.16 It then discusses the inherent challenges underlying protection order proceedings and their ineffectiveness in family courts. A. Traditional Civil Remedies for Domestic Violence Cases Civil protection order statutes serve as a critical resource for domestic violence survivors.17 Civil protection orders function as both an alternative and a supplement to the criminal justice system.18 Criminal sentences are typically reserved for “well-documented, long-standing patterns of violence or [for] particular violent acts.”19 Where criminal proceedings fail, civil protection orders become essential to maintaining the safety of survivors whose abusers are not criminally liable for abuse.20 1. Protection Orders Generally Since their inception in the 1970s,21 civil protection order statutes have expanded, both in their scope of coverage and breadth of relief.22 For example, statutes historically only afforded relief to those in state-recognized relationships but now extend protection to a broader array of relationships, including current and past intimate partners and individuals who share a home.23 Similarly, while older statutes only offered limited forms of relief (such as stay away orders), many statutes now include “child custody, visitation, spousal and child 16 17 23 PA. CONS. STAT. § 6101–6122 (2016). Ann E. Freedman, Fact-Finding in Civil Domestic Violence Cases: Secondary Traumatic Stress and the Need for Compassionate Witnesses, 11 AM. U. J. GENDER SOCIAL POL’Y & L. 567, 584 (2003). 18 Id. at 586. 19 Id. 20 See id. at 585-86 (noting that criminal prosecution is usually limited to ongoing or more extreme instances of domestic violence). 21 Kohn, supra note 2, at 524. 22 See, e.g., Richard A. DuBose III, Katsenelenbogen v. Katsenelenbogen: Through the Eyes of the Victim—Maryland’s Civil Protection Order and the Role of the Court, 32 U. BALT. L. REV. 237, 24243 (2003) (comparing the expanded definition of abuse, the classes of persons eligible for relief, and the relief provided for in Maryland’s 1992 domestic violence statute with the previous 1980 Act). 23 See Kohn, supra note 2, at 524-25. 1562 University of Pennsylvania Law Review [Vol. 164: 1557 support, and participation in court-ordered alcohol, drug, and batterer intervention programs” as alternative forms of relief.24 2. The Pennsylvania Protection from Abuse Act: A Case Study The Pennsylvania Protection from Abuse Act serves as one example of a typical civil protection order statute.25 The Act provides a civil remedy for domestic violence survivors through Protection from Abuse (PFA) orders.26 A Pennsylvania citizen may seek a PFA against any household or family member including a spouse, sibling, parent, child, or current or former intimate partner.27 A judge may issue a PFA order that is classified as protection-only,28 full no contact,29 or no contact with eviction.30 It also may include custody31 and support provisions for cases involving minor children,32 as well as a weapons provision ordering the perpetrator to surrender weapons in his or her possession.33 The Act defines abuse to include: (1) Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault, or incest with or without a deadly weapon[;] (2) Placing another in reasonable fear of imminent serious bodily injury[;] (3) The infliction of false imprisonment . . . [;] (4) Physically or sexually abusing minor children . . . [; and] (5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including 24 25 26 Id. at 525. 23 PA. CONS. STAT. §§ 6101–6122 (2016). Id. § 6108(a). While the statute itself only refers to “protection orders,” orders entered pursuant to the Protection from Abuse Act are referred to as PFA orders in common practice. See, e.g., Protection from Abuse Orders (PFA), WOMENSLAW.ORG, http://www.womenslaw.org/laws_ state_type.php?id=10027&state_code=PA [https://perma.cc/F6R7-RUBQ] (last updated Jan. 9, 2015) (describing the process for obtaining protection orders in Pennsylvania and using the term “PFA” or “protection from abuse order”). 27 See 23 PA. CONS. STAT. § 6108(a) (allowing a court to grant a PFA to prevent “abuse” of a plaintiff or minor children); see also id. § 6102(a) (defining “abuse” as any of an enumerated list of acts committed between “family or household memers, sexual or intimate partners or persons who share biological parenthood”). 28 See id. § 6108(a)(1) (providing protection-only relief, which “[d]irect[s] the defendant to refrain from abusing the plaintiff or minor children”). 29 See id. § 6108(a)(6) (prohibiting the defendant “from having any contact with the plaintiff or minor children). 30 See id. § 6108(a)(2) (granting “possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff . . . .”). 31 See id. § 6108(a)(4) (providing “temporary custody of or establishing temporary visitation rights with regard to minor children”). 32 See id. § 6108(a)(5) (ordering “the defendant to pay financial support to those persons the defendant has a duty to support”). 33 Id. § 6108(a)(7). 2016] Protecting, Restoring, Improving 1563 following the person . . . under circumstances which place the person in reasonable fear of bodily injury.34 A person seeking a PFA must first file a petition in the Court of Common Pleas.35 If the petitioner alleges “immediate and present danger of abuse,” a judge must hold an ex parte hearing to review the petition.36 There, the judge decides whether to issue a temporary PFA and schedule a full hearing, schedule a full hearing without issuing a temporary PFA, or dismiss the petition.37 If a temporary PFA is granted, it remains in effect until the full hearing.38 Regardless of whether the judge issues a temporary order, a full hearing must be scheduled within ten business days of the filing of the petition.39 Between the ex parte hearing and the full hearing, the petitioner must serve the respondent with the PFA petition.40 At the full hearing, a judge will decide whether to issue a final PFA.41 A final PFA may be issued after: (1) an agreement between the parties, (2) an agreement without admission, (3) a hearing and decision by the court, or (4) by “default,” after a hearing where the defendant failed to appear despite proper service.42 At the hearing, both parties will have an opportunity to testify and present evidence.43 While both parties have the right to be 34 35 Id. § 6102(a). See PA. R. CIV. P. 1901.3(a) (providing that, with one exception, protection order actions must begin with a petition to a court of common pleas describing the alleged acts of abuse by the defendant). 36 23 PA. CONS. STAT. § 6107(b)(1). 37 Id. § 6107(b). 38 Id. § 6107(b)(2). 39 Id. § 6107(a). 40 Id. At a judge’s discretion, a sheriff or other designated official may serve the defendant. Id. § 6106(f). However, in practice, petitioners often bear the responsibility of seeking assistance from the police. See FAMILY LAW SECTION OF THE PHILA. BAR ASS’N, PETITION FOR PROTECTION FROM ABUSE: INSTRUCTION SHEET ¶ 5 (2011), www.courts.phila.gov/pdf/forms/domestic-relations/Petitionfor-Protection-From-Abuse-w-instructions.pdf [https://perma.cc/D6ZR-CMVK] (suggesting that petitioners seek service assistance from the police). 41 See 23 PA. CONS. STAT. § 6108(a) (allowing a judge to issue a PFA “to bring about a cessation of abuse of the plaintiff or minor children”). 42 See PA. R. CIV. P. 1905(e) (requiring a PFA to indicate which of the above situations led to the order being issued). 43 See WOMEN’S LAW PROJECT, DECIDING CHILD CUSTODY WHEN THERE IS DOMESTIC VIOLENCE: A BENCHBOOK FOR PENNSYLVANIA COURTS 49-60 (rev. 2013), http://www. womenslawproject.org/resources/Benchbook_FINAL_Mar2013.pdf [https://perma.cc/C7KP-35K3] (noting that evidence presented in PFA hearings is governed by the Pennsylvania Rules of Evidence and discussing considerations for particular types of evidence presented in the domestic violence context, including victim testimony, evidence of criminal conduct, photographs, business records, and expert testimony). 1564 University of Pennsylvania Law Review [Vol. 164: 1557 represented,44 most are not.45 If a final PFA is issued, a petitioner is entitled to court-ordered protection for up to three years.46 When a respondent violates either a temporary or a final PFA, a petitioner may call the police, who will arrest the respondent and charge him or her with criminal contempt, or may file a complaint for criminal contempt even in the absence of an arrest.47 Statistics from Philadelphia illustrate the relative frequency of the varying levels of protection available through the courts. In 2013, the Philadelphia Family Court, the largest family court system in Pennsylvania, disposed of almost 10,000 PFA petitions.48 In over half of those cases, the petitioner did not appear for the hearing.49 In 1103 cases, the petitioner withdrew the petition.50 Among the remaining approximately 3000 dispositions, almost half resulted in stipulations or agreements between the parties.51 Of 12,000 total petitioners who filed for protection orders in 2013, only 1060 received final orders.52 44 See 23 PA. CONS. STAT. § 6111 (“A domestic violence counselor/advocate may accompany a party to any legal proceeding or hearing under this chapter.”). 45 See, e.g., Steven K. Berenson, A Family Law Residency Program?: A Modest Proposal in Response to the Burdens Created by Self-Represented Litigants in Family Court, 33 RUTGERS L.J. 105, 109 (2001) (citing a study of Maricopa County, Arizona, which found that in 1990, at least one of the parties in family law cases was unrepresented in over 88% of cases). An abused litigant’s ability to secure a PFA—specifically, one that affords adequate relief—often turns on whether that party retained representation in the matter. See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 HOFSTRA L. REV. 801, 845 (1993) (“[B]attered women who can obtain legal assistance from trained counsel are much more likely to receive civil protection orders which contain complete and effective relief.”). The disparity in results between represented and unrepresented parties is particularly troubling given that a sizable majority of litigants in domestic violence cases proceed without representation. See, e.g., Susan B. Sorenson, Violence Against Women in Philadelphia—A Report to the City 15 (2012) (unpublished manuscript), http://repository.upenn.edu/cgi/viewcontent.cgi?article=1180&context=spp_papers [https://perma.cc/ 5SRQ-5S4H] (indicating that about four out of five petitioners in Philadelphia proceed without representation). In addition to enduring the emotional and physical trauma, a litigant without counsel must be vigilant to become acquainted with and abide by the many nuanced procedural and substantive rules attendant to civil litigation. Cf. Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 CONN. L. REV. 741, 748 (2015) (“[P]ro se parties routinely flunk basic procedural entrance exams . . . . Failure to clear procedural hurdles often results in negative case outcomes . . . .”). For further discussion on pro se litigants see infra Section I.B.2. 46 23 PA. CONS. STAT. § 6108(d). 47 PA. R. CIV. P. § 1901.5. 48 Admin. Office of Pa. Courts, Protection from Abuse, UNIFIED JUD. SYS. PA., http://www.pacourts.us/news-and-statistics/research-and-statistics/protection-from-abuse [https:// perma.cc/RPW7-9H6X] (last visited Apr. 15, 2016) (select “Philadelphia”). 49 In 5533 cases, the plaintiff did not appear. Id. 50 Id. 51 See id. (reporting that 1346 cases were resolved by stipulation or agreement). 52 A number of variables account for the discrepancy between the volume of PFA filings and the limited number of petitioners receiving final orders. For instance, petitioners may decline to pursue their PFA on account of fear or attachment to their abuser. See supra note 7. Procedural mechanisms may also impede or wholly deter service of process. See Sorenson, supra note 45, at 17 (“[P]etitioner[s] . . . risk[] further abuse when attempting to serve court papers on the defendant.”). The inherent complexity of filing and subsequently prosecuting a PFA may also attribute to the 2016] Protecting, Restoring, Improving 1565 B. Unique Challenges Presented by Protection Order Proceedings While crucial, the process to obtain a PFA is far from ideal. Nationwide, scholars and practitioners alike cite to logistical infirmities that pervade the process of both obtaining and enforcing PFA orders.53 Protection order proceedings pose unique challenges for litigants and attorneys alike. Among them, congested court dockets, inadequate resources, unrepresented litigants, and challenging subject matter are most prominent. This Section analyzes each challenge in turn. 1. Congested Court Dockets and Inadequate Resources Most family court systems operate without essential resources. They lack adequate judicial training,54 evidence gathering assistance, expert witness services, and the capability to handle high-risk cases.55 Some scholars attribute this lack of resources i…