8.4.5 “Mutual” Violence

Unfortunately, in many cases involving intimate partner violence, family courts treat victims as if they are mutually violent and equally responsible for family “conflict.” As a result, the court may find that both your client and her abusive former partner have a history of perpetrating abuse. The PSFVRA addresses this scenario. Where a court finds that both parents have a history of perpetrating abuse, it must award sole custody to the parent who is less likely to continue the family violence.1  Lawyers should be prepared to present evidence, testimony, and argument on this issue, should it become necessary during the litigation.

All case planning in domestic violence cases should anticipate that abusive former partners will allege that the victim is either the primary aggressor or mutually violent. Although anger is the prevailing emotional response to abuse, judges often believe that anger is inconsistent with the way “real victims” behave. When victims present as angry or resentful toward the partners who have abused them or when they admit to fighting back, many courts are quick to conclude they are mutually violent.2  Women of color – particularly Black women – are more often perceived as mutually violent, in part because of racist stereotypes.3  Pervasive cultural stereotypes that “real” victims are fearful and passive and suffer from “learned helplessness” contribute to this problem. Carefully consider how these issues will play out in your case, and plan accordingly.

• 1La. R.S. 9:364(D).
• 2Leigh Goodmark, When Is A Battered Woman Not A Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75 (2008). Ironically, decades of judicial education programming have exacerbated this problem by promoting simplistic concepts of “learned helplessness,” and “battered women’s syndrome.” Both concepts tend to be presented in ways that essentialize the experiences of women subjected to abuse, pathologize the rational ways that women respond to abuse, and reinforce the false stereotype of a passive, white, and heterosexual victim. This article is a great resource for attorneys representing domestic violence survivors in civil litigation. Goodmark calls out some of the most common ways that lawyers seek to make their client’s courtroom narratives conform to unrealistic and harmful myths about victims and challenges us to collaborate with our clients to develop “counter stories” that more authentically reflect their experiences, beliefs, and actions.
• 3Id.