Once you have decided to represent a survivor in need of legal services, do not be afraid of the facts. Make sure to follow up with your client on issues or allegations that you don’t “feel” good about. Whatever issues you see, the court will find them and likely focus on them, often to your client’s detriment. Clients are imperfect, but their actions are mostly rational and can be explained. It is the lawyer’s job to take the time necessary to understand any confusing or complicated facts or behavior and to present them effectively to the judge.
People subjected to abuse by their intimate partners rarely conform to societal notions of “good” or “deserving” victims. Representing survivors can be challenging not only because clients are imperfect, but also because society imposes unrealistic expectations on them. Most people expect a victim to appear afraid of her abuser, not angry at him. As a result, it is important that attorneys prepare to deal with allegations that your client is the aggressor or is mutually violent. In some cases, police may have wrongfully arrested a victim when she called for help, bolstering the abusive party’s claim. In cases like these, it can be useful to present testimony and evidence that draws a distinction between the purposes and effects of violence used by either party in the relationship. Victims tend to use violence as a form of resistance, in either self-defense or retaliatory resistance to abuse and control. Victims’ use of force tends not to result in the same level of physical or emotional harm to the abusive party unless the victim uses a weapon to equalize a physical power imbalance. Domestic violence perpetrators, on the other hand, tend to use force and violence to exert control over and enforce compliance from their partner, and the violence they use tends to cause greater harm and create more far-reaching consequences for the victim.
Some other issues that may require special consideration by lawyers include:
- Survivors with substance dependence issues
- Survivors with mental health issues
- Survivors who injured the abuser
- Survivors with an arrest history
- Survivors who maintain contact with an abusive former partner after obtaining a TRO
Make sure to “connect the dots” if the abuse or resulting trauma gave rise to any of the issues above. The National Center on Domestic Violence, Trauma & Mental Health has an excellent resource guide on representing clients with mental health issues.1
- Victim Stereotypes.
Victim and perpetrator stereotypes often come into play in domestic violence cases. Effective case planning includes preparation for a variety of predictable defenses that abusive former partners use against survivors, most of which play upon gendered and/or racist stereotypes such as (1) the lying, vindictive, or scorned woman; (2) the hysterical, crazy, or exaggerating woman; (3) the provocateur; or (4) the cheating manipulator. Your client is likely to know which of these the batterer will use. Do not underestimate the effectiveness of these powerful cultural archetypes.
In addition to the gendered stereotypes that abusive former partners and their lawyers frequently exploit, commonly held beliefs about “real victims” of domestic violence also come into play. For example, when victims present as angry or resistant to their abusers or even simply insistent in pursuing legal protections, they are readily cast as mutually violent perpetrators and as “high-conflict” or “contentious” litigants.
- Perpetrator Stereotypes.
Lawyers must also prepare for the role that stereotypes about domestic violence perpetrators will play in their case. The race, economic privilege, and professional status of the party who is abusive often dictates which stereotypes about victims and abusers rise to the surface. The commonly held belief that domestic violence is primarily committed by people of lower socioeconomic status can make it harder for victims whose perpetrators have financial resources and professional credentials. Additionally, the party who is abusive often benefits from the tendency to conflate domestic violence with “anger management” problems. Although many abusers tend to be experts at managing their anger and directing it to only one safe target (their intimate partner), judges often expect them to present as volatile and angry. When they appear calm and controlled in court, their behavior is wrongly perceived as incongruous with abuse. Similarly, judges who wrongly believe that domestic violence is a mental illness often think that psychological testing will reveal some kind of pathology that is probative of the issue of domestic violence.
By thinking through how these issues will play out between the parties in a case, lawyers can prepare to meet them, and sometimes even confront them directly in closing.
- 1Mary Malefyt Seighman, et al., Nat’l Ctr. on Domestic Violence, Trauma & Mental Health, Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges: A Handbook for Attorneys (2011).