Cases involving LGBTQI+ survivors of abuse can present challenges that lawyers need to be prepared to address. Most domestic violence attorneys have little experience representing LGBTQI+ survivors, in part because a history of homophobia or ignorance among mainstream service providers has led to distrust and a lack of organizational competence to provide services. Although there is a commonly held belief that intimate partner violence is more pervasive in heterosexual relationships than in others, studies show similar rates of intimate partner violence among same-sex couples.1 And transgender women experience some of the highest rates of gender-based violence but are among the least likely to access services or to have options for culturally competent services.2
An important part of being accessible to LGBTQI+ survivors is recognizing the need for specialized training and support. The American Bar Association’s Commission on Domestic & Sexual Violence has an LGBTQI+ Legal Access Project that provides training, support, and individualized technical assistance to lawyers and programs providing legal services to LGBTQI+ survivors.3 The Project can provide support to programs seeking to improve their accessibility and organizational competence with respect to LGBTQI+ survivors, as well as technical assistance on individual cases.
Some of the challenges LGBTQI+ survivors face include the fact that law enforcement tends to be less competent in identifying the predominate aggressor when responding to calls for service, more likely to minimize the danger to a victim, and more likely to make dual arrests.4 LGBTQI+ survivors can face abuse in the form of threats to “out” the victim or to take away children to which the victim may have limited or no custodial rights. Furthermore, survivors may find it difficult to avoid an abusive former partner in a local, socially insular LGBTQI+ community and may face homophobia or transphobia among law enforcement, service providers, and courts when they seek help.
Especially in protective order cases involving same-sex partners and transgender women, the often ineffectual or harmful responses by police can make litigation more challenging by painting a picture of mutual violence. Lawyers should develop evidence to show how the purpose and the effect of the abusive party’s violence is different from physical violence the victim may have used to resist or defend against control and abuse. For example, an abusive party may laugh at or taunt a victim who strikes the abuser, suggesting that the abuser does not actually fear the victim; the absence of fear undercuts the notion that both parties are equal aggressors. Additionally, the type of violence used can also be an important way of helping judges understand distinctions between the abusive party and the victim when there are dueling claims of abuse. For example, strangulation is a behavior only an abusive party engages in, and an expert in strangulation may be able to explain the pervasive tactic of strangulation in abusive relationships to a judge.
- 1Mikel J. Walters, et al., Div. of Domestic Violence Prevention, Cts. for Disease Control & Prevention, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Findings of Victimization by Sexual Orientation (2013).
- 2Sarah M. Peitzmeier, et al., Intimate Partner Violence in Transgender Populations: Systematic Review and Meta-analysis of Prevalence and Correlates, 110 Am. J. Pub. Health e1 (2020).
- 3See LGBTQI+ Legal Access Project, Am. Bar. Ass’n.
- 4Leigh Goodmark, When Is A Battered Woman Not A Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75, 90–92 (2008).