‘There is just nothing to hold on to in this case’: legal technicalities and the use of psychological reports in Chilean domestic violence procedures
| Published date | 01 June 2024 |
| Author | IGNACIO RIQUELME ESPINOSA |
| Date | 01 June 2024 |
| DOI | http://doi.org/10.1111/jols.12475 |
DOI: 10.1111/jo ls.12475
ORIGINAL ARTICLE
‘There is just nothing to hold on to in this case’:
legal technicalities and the use of psychological
reports in Chilean domestic violence procedures
IGNACIO RIQUELME ESPINOSA
Instituto de Ciencias Sociales,
Universidad de O’Higgins, Chile
Correspondence
Ignacio Riquelme Espinosa, Instituto de
Ciencias Sociales, Universidad de
O’Higgins, Avenida del Libertador
Bernado O’Higgins 611, Rancagua, Chile.
Email: iariquel@uc.cl
Funding information
ANID/CONICYT Doctoral Programme,
Grant/AwardNumber: 72160095
Abstract
This ethnographic study examines how Chilean family
courts adjudicate domestic violence (DV) cases, high-
lighting a paradoxical shift away from their intended
flexibility towardsrigid bureaucratic procedure by exam-
ining the undue influence of psychological reports,
which are expensive and difficult-to-obtain documents,
on case outcomes. This research explores the role of
these reports as ‘legal technicalities’, serving as both
products and catalysts of specific social relations and
tensions, and reveals an earnest yet unsuccessful effort
to establish judicial authority amid poorly conceived DV
reform. The article contributes to an empirical, bottom-
up analysis of authority construction techniques used
in recent widespread judicial reforms in Chile, provid-
ing fresh insights into the complexities of institutional
changes within these contexts.
1 INTRODUCTION
The following description is part of my fieldnotes and reflects the paradoxical and problematic
operation of Chilean family courts when judging domestic violence (DV)1complaints:
1Chilean legislation employs the term ‘intra-family violence’,which broadly equates to the commonly understood term
‘domestic violence’.In this article, I opt for ‘domestic violence’ (DV) to facilitate wider understanding, but I acknowledge
that neither term conveys the gendered aspect of these conflicts. However,this discussion exceeds the scope of this article.
For an examination of the issue of gender in family violence in Chile, see F. Miranda and P. González, ‘Miradas insti-
tucionales sobre la categoría de género en materia de violencias contra las mujeres en Chile’ (2018) 5 Millcayac: Revista
Digital de Ciencias Sociales 1; H. Hiner and M. J.Azócar, ‘Irreconcilable Differences: Political Culture and Gender Violence
during the Chilean Transition to Democracy’ (2015) 42 Latin American Perspectives 52.
© 2024 The Author.Journal of Law and Society © 2024 Cardiff University Law School.
J. Law Soc. 2024;51:239–262. wileyonlinelibrary.com/journal/jols 239
240 JOURNAL OF LAWAND SOCIETY
I sit in the back of the courtroom for the hearing ahead. The judge begins the hear-
ing by pointing out that this is an ‘old case’ that started last year. The case involves
a woman who has accused her former partner of DV. The judge notes that the psy-
chological reports required as evidence have not yet been completed by the Servicio
Médico-Legal (the state’s forensic medical-legalservice). She tells the parties that she
will adjourn and new appointments will be requested from the medical-legal service.
She adds that it is very likelythat this new hearing will not be held at that time because
of the time it takes to get an appointment from the medical-legal service.
The woman, noticeably frustrated, says that she needs the hearing to continue.
She argues that the defendant is very aggressive and mistreats her whenever he visits
their children. The judge responds that the reports are needed for the resolution of
the case. The woman gets angry and says that the man – who remains silent – has
multiple complaints again him and that he is harming their children. She says that
she has been waiting for the court to do something for over a year now and begins
reciting the complaints against the man in other courts.
The judge responds in an imposing tone: ‘Madam, you are confusing things.’ ‘I
am not! There is widespread inefficiency, and he [the defendant] continues to attack
me’, the woman replies. The judge defends herself by saying that ‘the court is not
responsible for the delays of the medical-legal service’. The woman states that she
has brought her entire family to the court to act as witnesses, as well as new docu-
ments that demonstrate the continued abuse. Then she asks confrontationally: ‘What
was I supposed to resolve here today?!’ The judge responds: ‘Weare here to decide on
the possible presence of DV, which cannot be determined without the reports from
the medical-legal service.’ The judge establishes a new date for the hearing and reit-
erates that this too is likely to be adjourned due to lack of the psychological reports.
The woman leaves, crying: ‘Do not call me back into this court.’ (Author’sfieldnotes,
Court 1, 25 September 2017)
The procedures that the judge follows in this case were designed to create a flexible and
responsive court for addressing DV. However, in practice, DV trials deviate significantly from
this intention. The trial stage is characterized by a rigid and formalistic operation, where the
adjudication primarily depends on psychological reports, which evaluate both parties in the
case. Obtaining these documents is often difficult, which poses significant challenges for com-
plainants, the majority of whom are women. The most significant challenge in this regard is the
prolonged time that it takes for complainants to obtain these evaluations. As illustrated in the
above scenario, this often results in the repeated postponement of trials. Consequently, a judicial
system designed to address DV and gender inequality has ultimately become an unfavourable
and exclusionary space for women. In line with analyses of other bureaucratic processes,2
reports have become a tool that configures power within the courts by creating a long waiting
period that silently disempowers complainants and renders work meaningless for family court
professionals.
To date, existing research in Chile has overlooked the problems that family courts face with
psychological reports. The majority of available studies are journalistic3and public policy reports
2J. Auyer o, Patientsof the State: The Politics of Waiting in Argentina (2012).
3M. Pavez, ‘Peritjes psicológicos de daño como medio de prueba para acreditar VIF y maltratohabitual’ El Mercurio,24
March 2016, at <https://www.elmercurio.com/legal/movil/detalle.aspx?Id=904681&Path=/0D/CD/>.
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