September 11, 1997
Digest: A judge may not serve as commentator on a training video intended to advocate, among other things, that a prisoner's status as a "battered woman" is relevant to issues of parole eligibility.
Rules: 22 NYCRR 100.4(A)(1); Opinions: 95-126 (Vol. XIII); 94-31 (Vol. XII); 93-58 (Vol. XI); 91-43 (Vol. VII); 87-28 (Vol. I).
A judge inquires whether it is ethically permissible to serve as a commentator in a training video on the subject of domestic violence, which is being prepared by the Women in Prison Project of the Correctional Association of New York. The context of the video is described in documents enclosed with the inquiry, as follows:
The video will be used to train Parole Commissioners in New York and should be approximately 15 minutes long so that it can be used in a one hour training session. The video will sensitize Commissioners to the general issue of domestic violence as well as address some of the specific issues related to parole hearings for incarcerated battered women.
The video shall: 1) demonstrate the relationship between domestic violence and the crimes some women commit, 2) explain how battered women who strike back against their abusers are qualitatively different from other offenders -- they committed their crimes(s) because of specific circumstances which make unlikely to recidivate, and 3) reiterate that a battered women's abuse history is essential in understanding why she committed her crimes(s) and should be taken into consideration when deciding whether she is eligible for parole.
The Committee believes that the judge's participation as a commentator on the proposed training video "might give an appearance of partiality on the part of the judge" Opinion 91-43 (Vol. VII) [judge should not serve a president of charitable organization to support women offenders].
The excerpt quoted above represents a particular point of view that appears to be intended to apply to an entire class of cases. A judge's seeming endorsement of such a position would "cast doubt on the judge's capacity to act impartially as a judge" (22 NYCRR 100.4(A)) and therefore should not appear to be promoted by the judge. Accordingly, the question posed in the inquiry is answered in the negative. See also, Opinions 95-126 (Vol. XIII); 94-31 (Vol. XII), 93-58 (Vol. XI); 87-28 (Vol. 1).