Unfortunately, domestic violence is endemic in our society and,
hence, in our law practices: Nearly one in three women and one in
five men in Massachusetts have experienced physical violence, rape
and/or stalking by an intimate partner.1 Domestic
violence can happen to anyone regardless of race, age, sexual
orientation, class, religion or gender.
As family law practitioners, it is imperative to understand the
dynamics of abuse in order to recognize it, build trust and
understanding with survivor clients and better advocate for their
needs. In this short article,2 we attempt to outline
some considerations we hope will assist practitioners in advocating
for clients in abusive relationships and understanding the limits
of the legal system, which regrettably has often been ineffectual
in combating domestic violence and has even perpetuated systemic
abuse.
This article does not purport to provide an exhaustive assessment
of all domestic violence situations, responses or outcomes. As with
any client, each survivor of domestic abuse is an individual who
responds in their3 own way.
Initial client screening and intake
Address confidentiality with your client:
Carefully explain attorney-client privilege and privacy protections
so that the client feels safe disclosing abuse to you. Many
survivors have been warned or threatened by their abuser not to
tell anyone and speaking up about their experience can be a big
risk for the client.
Ask questions about domestic abuse: Proceed
sensitively, but include screening questions about abuse. Let your
client know it's okay to talk about and, in fact, critical to your
ability to represent them effectively.
Give your client time and space to disclose abuse and
validate that you believe them: It may take time for a
client to reveal abuse. Be supportive and validate their
experiences. As a client's trust in you grows they may be more
willing to disclose important details, so encourage them to retell
their story more than once as you continue working with them.
It takes time to build trust: Be aware that it
may be very difficult for your client to trust you, and they may
never have complete trust in you. Be clear about guidelines of
representation and communication with your client so they know what
to expect from you. Try to demonstrate that you're worthy of their
trust, but don't take it personally if your client remains guarded.
Self-preservation is an essential tool for survivors.
Beware of well-intentioned but victim-blaming
statements: Be very careful not to make statements that
you may think are innocuous, but may be perceived as blaming the
victim for the abuse, such as, "Why did you stay in the
relationship for so long?" or, "Did you ever consider calling the
police/getting a restraining order?" Survivors have often been told
by the abuser that it's their fault - they don't need to hear it
from their attorney.
Don't make assumptions: Don't make assumptions
about a client's sexual orientation or gender identity until they
disclose it; don't assume a client is the victim or abuser based on
their gender. Don't assume that if your client's partner has
accused them of abuse or has a restraining order against them that
they are the abuser. Be aware of stereotypes and listen with an
open mind.
Trust your client's instincts and assessment of the
situation: Your client is the expert on the abuser and
what he or she is capable of. Listen and trust their
assessment.
Continue to monitor the situation: Even if your
client does not initially disclose any abuse, continue to inquire
periodically throughout your representation and remain vigilant of
warning signs such as: your client's fear of their partner's
temper; your client not seeing or spending time with friends or
family; your client experiencing threats to keep children away, be
deported or have their sexual orientation disclosed; and/or being
denied access to financial resources. Obviously, this is just a
sampling of what may be observable.
Be able to provide resources: Create and maintain
contacts with (or at least be sure you have accurate contact
information on hand for) appropriate services to connect your
client with including counseling, shelters and housing programs,
medical services, job training-services, welfare offices and crisis
hotlines (24/7 MA hotline: SafeLink 1-877-785-2020). Instruct your
client to utilize them from a public phone or library computer if
their safety may be in danger if their partner discovers their
activities.
Safety
Escalation of danger: Be aware that the risk of
abuse (whether physical violence or other abuse) escalates when a
survivor leaves the home or obtains legal assistance because the
abuser's sense of power and control are threatened. Encourage your
client to be open with you about what they believe their partner is
capable of. Take this danger seriously and engage in taking safety
precautions for your client, their children, and yourself, if
needed.
Legal protections: Be aware of what legal
protections and avenues related to domestic abuse are available to
your client - 209A protective orders, harassment orders, workplace
protections and new criminal statutes pursuant to An Act Relative
to Domestic Violence. Also be aware that legal measures, while
important, are often not abided and do not deter or put a stop to
domestic violence.
Safety planning: Encourage your client to keep a
list of resources they can turn to for support, to look for a safe
place to stay and to consider other logistical and financial
implications of escaping domestic violence. Take steps to have
abusers surrender keys to your client's home and/or car and refrain
from shutting off your client's utilities or interfering with their
mail and accessing email, social media, cell phone records, etc. Be
aware of and take precautions for cyber security. For additional
suggestions, see Quirion, Chapter 25.3 and the National Domestic
Violence Hotline (www.thehotline.org)
Understanding the dynamics of abuse
Not all domestic violence is physical: Abuse can be
physical, emotional, sexual or economic - the key is that the
behaviors are used to maintain coercive control over the victim.
ALL of these are abuse and must be seen and recognized and
confronted. "Abuse is a repetitive pattern of behaviors to maintain
power and control over an intimate partner. These are behaviors
that physically harm, arouse fear, prevent a partner from doing
what they wish or force them to behave in ways they do not want.
Abuse includes the use of physical and sexual violence, threats and
intimidation, emotional abuse and economic deprivation. Many of
these different forms of abuse can be going on at any one
time."4
Abuser tools: There are many different tactics
used by abusers to control their partners. When an abuser's sense
of power and control are threatened or tactics used previously are
unavailable to them (such as if their partner has left the home),
they may engage in other forms of abuse. Abusers may want to exact
revenge on their partners and do anything to hurt them, even if it
hurts the abuser as well (such as letting the house be foreclosed,
losing their job, or harming their children).
Survivor responses: There is no uniform,
predictable, correct way to respond to abuse. Survivor responses to
abuse can vary greatly. Some survivors may seem numb, some may seem
passive and subdued, while others may be angry and outspoken or
even seem obsessed with the abuse they suffered. All are valid and
should not be judged.
Psychological effects: Some survivors may
experience Post Traumatic Stress Disorder, depression, anxiety
and/or dissociation.5 Others may exhibit symptoms of
these conditions in the absence of a diagnosis. Educate yourself
about these conditions and the effect on your client to help you
better understand and represent your client. Psychological
conditions also may be relevant to many legal issues including
child custody and alimony.
LGBT domestic violence: Educate yourself, seek training
and be sensitive to issues specific to clients in lesbian, gay,
bisexual and transgender relationships. While the dynamics of abuse
are the same, there may be additional dynamics including fear of
disclosure of sexual orientation, discrimination and systemic
oppression, hostility of judges, difficulty obtaining services,
concerns about losing custody and barriers within the
community.6
Issues in representation
The "irrational" client: Often, survivors have
been made to feel that they are crazy, irrational, unreasonable
and/or have been told the abuse didn't happen or was their fault.
Your client may be very sensitive to feeling heard, believed and
understood. An abuse survivor may also be perceived to be
exaggerating or overly paranoid or alarmist. Hyper-vigilance or
hyper-sensitivity to the abuser's triggers is a perfectly rational,
understandable and necessary response to protect him or herself
from abuse, but may make the client come off as un-credible or
unlikable. Understanding this dynamic can help you confront and
mitigate it.
The "charming" abuser: Most abusers are perfectly
likeable, affable people. A colleague who works in domestic
violence once commented, "I never met an abuser I didn't like."
Don't be taken in by a charming abuser, and be sure to make your
client aware that while you may be cordial in dealings with the
abuser, it doesn't mean you are aligning with them.
Educate judges about abuse: It is essential to
try to make your judge understand and understand the context of
abusive relationships. Be prepared for judges to be unreceptive and
even hostile to your client's experiences. Often, domestic abuse is
not recognized and such cases are instead mislabeled as being "high
conflict" with victims being held to blame. Judges who don't
understand the dynamics and effects of abuse are likely to
characterize and penalize the survivor as being unreasonable,
difficult, or obstructionist. Use whatever resources you can,
including domestic violence experts and mental health providers, to
make your judge understand.
Going to court
Protect your client: The experience of facing the
abuser, even in controlled environments such as the court room or
in mediation, may be harrowing for your client. Prepare them ahead
of time, and tell them they don't have to speak with the abuser. In
the courtroom, physically place yourself between your client and
their former partner. Don't hesitate to ask a court officer to stay
nearby or detain the abuser after the hearing until your client has
safely left the court.
Legal issues
(Obviously there are a plethora; these are just a few
tips.)
Litigation as a means of re-victimization:
Abusers may use scorched-earth tactics and use the legal process to
harass your client. Be prepared and expose the abuse to the court
and seek to dismiss baseless actions and seek sanctions.
Mediation or cooperative law: While it may be appropriate in some
cases, approach with great caution due to the power imbalance
between the parties, the lack of protections available through the
courts, and the potential for the abuser using the process as a
tool for maintaining control and perpetuating
abuse.7
Grounds for divorce: Although common practice is
to file the complaint for divorce on the grounds of "irretrievable
breakdown," consider filing on the grounds of "cruel and abusive
treatment." While there is no tangible legal benefit to doing so,
failing to plead abuse grounds may result in the judge discounting
or minimizing evidence of abuse sought to be admitted.
Custody: While not always followed, there are
strong presumptions under Massachusetts law against awarding
custody to a parent who has committed a "pattern of abuse or a
serious incident of abuse towards a parent of child" and, further,
the court is required to consider past or present abuse
toward either a parent or child as a factor contrary to the child's
best interest. M.G.L. c. 209C, §10(e). Utilize these presumptions
when advocating for your client. Don't assume that your client will
get custody if challenged.8 The abuser's parents may
even attempt to litigate for grandparent visitation rights - be
prepared to defend against it on the basis that it's truly the
abuser seeking control and/or is a violation of your client's
restraining order, if they have one.
Alimony: The Alimony Reform Act of 2011
specifically includes "a party's inability to provide for that
party's own support by reason of physical or mental abuse by the
payor" as a potential ground for judges to deviate from the alimony
guidelines. Advocates for survivors should argue their client's
entitlement to alimony under this provision whenever appropriate
and use it to further educate judges about the harm of abuse.
Mutual protective orders: Vigorously protest
against any protective order against your client, including a
mutual protective order, even if it might hasten a settlement or if
your client fears going to court. A mutual protective order can
have seriously detrimental future consequences including weakening
the client's future claims, putting them at risk of criminal
violations, and posing a risk of deportation for non-citizen
clients.
Conclusion
While it can be challenging and frustrating working to achieve
just results for survivors, it is critical for family law
practitioners to gain an understanding of the nuances involved in
representing victims of abuse and utilizing the sometimes limited
strategies available.
We are grateful and indebted to our survivor clients, who have
shared their stories and helped us grow as lawyers and human
beings.
- 2010 National Intimate Partner and Sexual Violence Survey data
for Massachusetts, quoted in Jane Doe Inc, "Massachusetts
Snapshot."
- For a much more thorough exploration of issues related to
representing abuse survivors, see Pauline Quirion, Esq.,
MASSACHUSETTS DIVORCE LAW PRACTICE MANUAL, Vol. III, Chapter 25,
"Representing Victims of Domestic Violence" (MCLE 2014). The
American Bar Association Commission on Domestic Violence and U.S.
Department of Justice Office on Violence Against Women also offer
helpful materials on domestic abuse for practitioners.
- Domestic violence affects all genders and gender-identities. In
an effort to be gender-neutral, this article uses "their," "they"
and "them" to refer to survivors rather than gendered
pronouns.
- The National Domestic Violence Hotline: What is Abuse?
?(www.thehotline.org/is-this-abuse/abuse-defined)
- Quirion, Chapter 25.3.1
- ABA Commission on Domestic Violence, in Collaboration with the
National LGBT Bar Association, "Tool for Attorneys Working with
Lesbian, Gay, Bisexual, and Transgender (LGBT) Survivors of
Domestic Violence."
- Margaret B. Drew, "Collarboration and Coercion: Domestic
Violence Meets Collaborative Law," I Irish Law Journal 27, p.
38-39.
- Studies show that abusive parents are more likely to seek sole
custody than non-violent ones, and are successful about 70% of the
time. ABA Commission on Domestic Violence, "Myths about Custody and
Domestic Violence and How to Counter Them," 2006.