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Issues of Trust and Confidence in the Legal System
for Women
A statement by Marion Strand, Rochester NOW, to The Committee to
Promote Public Trust and Confidence in the Legal System, March 29,
1999, Rochester, NY
This committee has identified the public's trust and confidence in
our legal system as being of prime importance. The mission statement
has two basic parts: first, to assure that there is a fair and just
system, and second, to bring about a greater understanding of and
respect for that legal system.
I call your attention to the fact that at least 50% of that public
you are concerned about consists of women. In recent decades, as more
and more women have entered mainstream society through work and
politics, their interaction with the legal system has dramatically
increased. All too frequently their first experience in the legal
arena comes from divorce litigation. During this process most suffer
great disillusionment, loss of dignity, and impoverishment.
Your committee brochure lists five areas of concern:
1. Issues of bias. A Summary Report of the New York Task Force on
Women in the Courts was issued on March 31, 1986. This Task Force,
appointed by the Unified Court System and composed of professors,
lawyers, and jurists concluded that there was pervasive gender bias
against women as litigants, attorneys, and court employees, and as a
consequence women are often denied equal justice, equal treatment, and
equal opportunity. Meetings were held in this community to publicize
this report and to garner support for change. These efforts died a
quiet death.
2. Access to Justice. On September 23, 1993, in testimony before
the N.Y.S. Assembly, the Co-chairs of the N.O.W. Domestic Relations
Law Task Force, Lilian Kozak, CPA; and Gloria Jacobs, Esq. itemized a
list of complaints about judges who ignore the law. Among items listed
were: failure to award pendente lite legal fees; failure to punish
perjury; failure to punish non-compliance with their orders; and
failure to curtail motion churning and harassment. The above failures
contribute to the increased poverty of the most vulnerable party to
the divorce and lead to unconscionably large amounts of family assets
being transferred to lawyers and courts. Even then, true access is
illusive.
3. Judicial Administration. The split between Supreme Court and
Family Court jurisdiction in divorce matters can create confusion and
legal mischief. Family Court could issue an order of protection
requiring that a spouse stay away from the family home, then a divorce
could be granted on grounds of abandonment in Supreme Court, with
child support cancelled based on a claim of denial of visitation.
In another instance, one spouse may be granted exclusive occupancy
of the family home. The mortgage may then be left unpaid with the
house going into foreclosure while the divorce battle continues on.
Children could then be left homeless. Tests and social work
investigations may be conducted through the auspices on one court and
be unavailable to the other because of confidentiality. Medical forms
attesting to good health can be submitted for custody studies in
Family Court while reports testifying to permanent disability are
submitted to Supreme Court, thus setting up the possibility that an
unscrupulous parent can get preference in a custody battle. The list
goes on and on.
4. Legal and Judicial Ethics. Two publications discuss these
problems in detail -- Women in Divorce: Lawyers, Ethics, Fees &
Fairness a March 1992 study produced by the N.Y.C. Department of
Consumer Affairs, and at the national level a book, Divorced from
Justice: The Abuse of Women and Children by Divorce Lawyers and
Judges. Both of these publications were authored by investigative
reporter, Karen Winner, founder of Justice Seekers, Inc.
How can the system inspire public trust when a working woman is
harassed into bankruptcy by having to answer repeated motions, or a
badly injured woman is persecuted by a vengeful imprisoned ex-spouse
through frivolous court motions? Or, what confidence can a woman have
in the legal system if she cannot retrieve her retainer from a lawyer
who is not adequately pressing her case and upon seeking help from a
court employee is told that the only way she could get legal
representation in her situation would be if she killed the lawyer and
qualified for a public defender?
5. Media Portrayal and Public Understanding. Under this item the
committee lists public knowledge and "openness of the legal system." A
quote I have hanging on my wall states: "Confidentiality was designed
by the male power structure to defend its ranks." Secrecy invites
corruption. Until New York opens up the complaint files against
attorneys and judges, public trust and confidence cannot be
established.
Several decades ago I sat in a jammed suburban movie theatre to see
a picture panned by critics. "And Justice for All" was its title. I
wish every person on this committee could have been there that night.
The hooting and hollering of the audience at the misadministration
antics of an erratic judge said more about public knowledge of and
grievance toward our legal system than any filed away report could.
We have reports and we have edicts, but do we have change? There
has been little follow up information regarding the Consumers' Bill of
Rights in Divorce which was to become effective on November 1, 1993.
What clout is behind it? The fact is that under the New York State
Constitution's equal protection of the law clause "gender" is not
listed while race, religion, and ethnic protection classifications
are.
The State ERA went down with hardly a sigh breathed. A casual visit
to Family Court reveals what unavailable statistics may not--it is a
second class system for disadvantaged poor women and their families
where everyone's civil rights are likely to be violated. A system so
segregated cannot gain the respect of knowledgeable persons concerned
with justice in this society.
Women crying out in despair in divorce matters are the canaries in
the mine warning of the possible further disintegration of the
judiciary into a bureaucratic morass. Our constitutional rights to due
process, delivered by duly elected judges, and an ethical legal
profession, is essential for a civil and healthy society. We cannot
afford less. Make the system fair and just and respect will follow.
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