Volume 18, Number 7
Providing Responsible Representation When Your Client Is Involved with Domestic Violence
By Bette J. Garlow
Domestic violence is a serious and widespread problem in American society that has been the subject of considerable attention in the last decade. Comprehensive and multidisciplinary education about this issue, as well as the enactment and implementation of numerous laws, has changed how society, including the legal system, responds to this problem.
If you are a lawyer practicing in a solo or general practice firm, you are virtually guaranteed to represent clients who are involved with domestic violence. Because you are likely to represent both victims and perpetrators at some point in your career, it is prudent for you to understand domestic violence in order to represent your client competently and responsibly. If you are saying to yourself that your practice does not include a great deal of family law cases so this information is not relevant to you, you may want to rethink that assumption. Although domestic violence is most apparent in family law and criminal cases, it also impacts numerous other types of cases, including bankruptcy, wills and estates, business, tax, property, elder, consumer, housing, and tort cases. You should learn how to screen for domestic violence, recognize it when your client is affected by it, and understand its implications for your client's case.
Just What Is Domestic Violence?
Generally, there are a couple of ways to define domestic violence. The first is the black letter definition found in criminal or family violence protection statutes. Very often, these definitions revolve around one or more physical acts or imminent threats of violence perpetrated by a family member or intimate partner against another family member or intimate partner. These definitions are found within virtually every state's legal code as well as in the federal law.
Behavioral and social scientists have defined domestic violence more broadly. Dr. Mary Ann Dutton, an ABA Commission on Domestic Violence member and national expert in the field, observes that domestic violence includes a pattern of interaction in which one partner is forced to change his or her behavior in response to threats or abuse from the other partner. Most social scientists agree that domestic violence involves a pattern of behavior in which an abuser uses numerous tactics to gain control and maintain power over a partner. Some of these tactics include intimidation, isolation, emotional abuse, sexual abuse, economic control, threats involving children, and other coercive acts.
The social definition may be more useful to you than black letter definitions when you are trying to identify whether your client's case involves domestic violence and when you contemplate a legal strategy or offer advice to your client.
How Common Is Domestic Violence?
An estimated 3 to 4 million American women are beaten each year by their husbands or partners.1 Some experts believe that a woman has between a one-in-three and a one-in-four chance of being abused by an intimate partner or spouse during her lifetime.2 Each year, between 3 and 10 million children live in homes where domestic violence occurs.3
Domestic violence does not just take place at home behind closed doors. Domestic violence also happens in the workplaces of the victims and perpetrators, places of business, restaurants, hospitals, motor vehicles, the post office, movie theaters, the mall, day care centers, schools, courthouses, law offices, and virtually everywhere people go. Intimate partners and children living in the home where violence occurs are obviously the most affected by domestic violence. However, anyone who happens to be in the vicinity of a single violent incident or an ongoing violent relationship will be affected.
Screening Your Clients
If you find yourself representing either a victim or a perpetrator of domestic violence, the client usually will hesitate to disclose that information. The client may be embarrassed and ashamed, not trust you initially, think that it is not relevant to the reason for seeking legal counsel, or not recognize that domestic violence is what is going on in his or her life. Frequently, neither perpetrators nor victims recognize the abusive dynamics within their relationships as domestic violence.
Abusive relationships tend to become normalized, with both parties thinking that the acts of violence are part of normal marital discord. It is common for both perpetrators and victims to minimize the level of violence in the relationship when discussing it with others.
If you ask your client whether she is a victim of domestic violence, she will likely tell you no. However, if you delve into the behavior patterns between partners, you might draw a different conclusion. Similarly, abusers often believe that they are entitled to their behavior and do not recognize it as abusive. Batterers believe that it is their right and duty to maintain power and control in the relationship. Thus, having unfettered discretion over the way the family uses resources or whether a partner works seems normal to an abuser. Although family decisions about whether a wife and mother works may seem neutral on the surface, how those decisions are enacted may be red flags for abuse.
For example, if the wife does not work, has no access to family resources, and has been isolated from family and friends, you would be well advised to find out what other dynamics are operating in her relationship with her spouse or partner. Keep in mind that if your case involves representing both the partners-for example in a tax case, to draft wills, or to convey property-you should conduct separate interviews (see "Is Your Client Involved in Domestic Violence?" for a list of screening questions).
Your Client's Case and Your Representation
If you are handling a family law case in which domestic violence is an issue, that factor should shape how you proceed with your representation. First and foremost, there are grave safety issues that must be addressed if you determine that your client is a victim or perpetrator of domestic violence. Violence tends to escalate when victims of domestic abuse explore avenues of separating from an abuser or do separate from an abuser. Very often, the act of calling a lawyer and setting up an appointment to talk about legal options is the catalyst that initiates the separation process.
When a victim walks through your door to attend a scheduled appointment, the chance of the violence in her relationship escalating has already increased. This is true before one word crosses her lips and before you have any idea about the violence occurring in her life. The likelihood of harm to children either by inadvertent or intentional acts also increases as the partners negotiate visitation arrangements and determine who has access to the children and when. If it is the batterer you represent, it is obviously in your client's interest not to further harm family members. Addressing these issues straight on with a batterer can possibly prevent such acts and help your client avoid future criminal actions. It is critical, therefore, that if domestic violence is an issue in your case, you must integrate safety precautions into your legal strategy.
When your client is the victim, you should determine when and where it is appropriate to communicate with her. For example, will it jeopardize her safety if you call her at her home or workplace? Is it safe to send documents or other correspondence to her home address? Would it be safer for her to establish a post office box to receive this mail? You should exercise extreme diligence to protect the confidentiality of victims of domestic violence; her life may be at stake if an abuser returns a phone call to your office because you have unwittingly left your number on the home answering machine. Your office staff should be trained accordingly.
Leaving an abusive partner is a process for most victims of domestic violence, not an event. Some victims of domestic violence separate from their abusers and reconcile several times. This is typical as they try out different options for establishing personal stability, but can be very frustrating for lawyers who do not understand how domestic violence impacts clients. If you are representing a victim of domestic violence, expect that she will experience a range of emotions including fear, anger, despair, hopefulness, anxiousness, and defiance. If you are representing a batterer, you will also witness a range of emotions that include anger, contriteness, and despair. Further, based on your observations you may believe that your client is completely in love with his partner and would never harm her. You will also hear from him that she was the one who started the fights and that she asked for what she got.
Solutions to your client's problems are not always legal in nature, and there are numerous community resources that may help your client. Know what those resources are and refer your clients to them. For example, community domestic violence programs are sources of rich support for victims. They can provide information about housing, employment, counseling, medical, and social services resources. Quite often, they can also provide legal advocates who will accompany your client to court and help with babysitting arrangements if needed. Batterers' reeducation programs are available in many communities and benefit the long-term outcome of a case and your client's life in general.
Whether you represent an abused or an abusive client, you should take allegations of abuse seriously. No matter what type of case you are involved in, if abuse is an issue, lawyers can help establish safe practices for the clients. For example, if the clients arrive at your office together to discuss drafting wills or selling joint property, it is in everyone's best interest that you confer separately with them. You will want to determine whether they both really want the same thing or whether one of the partners is being coerced into doing what the other wants. To undertake representation in such a manner may very well constitute a conflict of interest. Simply establishing an office protocol in which separate client conferences are routine will help you interview and screen your clients without arousing suspicion or endangering a client's safety.Notes
1. Sarah Glazer, Violence Against Women, 3(8) CQ RESEARCHER 171 (Congressional Quarterly, Inc. 1993).
2. Violence Against Women, A Majority Staff Report, Committee on the Judiciary, United States Senate, 102d Congress, October 1992, p.3 (citing the American Medical Association and Dr. Angela Browne).
3. AMERICAN PSYCHOLOGICAL ASSOCIATION, VIOLENCE AND THE FAMILY: REPORT OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION PRESIDENTIAL TASK FORCE ON VIOLENCE AND THE FAMILY 11 (1996).
Is Your Client Involved in Domestic Violence?
Ask your client these questions to determine whether domestic violence is present:1. Have either you or your partner acted in ways that caused the other to become afraid?
2. Are the two of you able to talk to each other without arguing?
3. What happens when you argue?
4. Do you think you can fully disclose your concerns about this legal matter in front of your partner?
5. Are you or your partner afraid to be in the same room with the other?
6. Are you able to freely express your point of view in front of your partner?
7. Have you or your partner ever threatened to hurt the other or another family member?
8. Have you or your partner ever destroyed family personal property?
9. Do you or your partner swear or name-call?
10. Have you or your partner ever made threats involving the children?
11. Have you or your partner ever become afraid because of looks from or actions by the other party?
12. Have you or your partner ever threatened to hurt yourself?
13. Has a family member ever had to call the police because of problems at home?
14. Have you or a family member ever needed to seek medical treatment because of an injury caused by a family member?
15. Do you agree about finances in your relationship?
16. Have you or a family member sought a protective order from any court?
17. Other than your partner, to whom do you turn for emotional support?
Source: Screening for Domestic Violence and Child Abuse, Pennsylvania Coalition Against Domestic Violence, 1998.
Men Can Be Victims, Too
Though studies indicate that victims of domestic violence are overwhelmingly female, it is not action exclusively perpetrated by men against women. Men are victims of domestic violence in some heterosexual relationships, and domestic violence occurs in some same-sex relationships involving both genders.
The same myths that operate to perpetuate male control in violent relationships can make it difficult for men who are victimized to talk about the violence in their lives and seek appropriate help. Services may be less available when a man is the victim as well. Though geared to serve women the majority of victims of domestic violence, many local domestic violence programs provide services to all victims regardless of gender. Lawyers should screen for the issue regardless of the gender of the client sitting in front of them and offer all appropriate assistance and advice. Legal protections and remedies are
Bette J. Garlow, Esq., M.P.A., is the director of the ABA Commission on Domestic Violence. She has provided civil legal representation to victims of domestic violence, conducted community education programs, and directed a domestic violence shelter program. For more information on domestic violence, visit the commission's website at www.abanet.org/domviol.