Lawyers Can (and Should) Use Domestic Violence Lethality Assessments Too

Tools like this are widely available and widely used by domestic violence advocates providing non-legal services to women who have been victimized by intimate partner violence. One such tool, the Danger Assessment--upon which many of the other tools are based--is available free online at http://www.dangerassessment.org. This tool was created in 1986, by Dr. Jacquelyn Campbell, the nation's foremost expert on domestic violence related homicide. The danger assessment was designed to help abused women determine their risks of danger for death or near-fatal assault in their relationships. It is one of many assessments available. There are other assessments that measure the danger of recurring abuse to the victim and recidivism by perpetrators. Many of these assessments are used in providing non-legal services to victims and survivors of domestic violence, as well as in the provision of services to perpetrators of the violence. These tools can also be useful for lawyers to utilize and understand, or at least be familiar with.

Whether the results of such assessments are admissible in court is beyond the subject of this article and likely depends on the specific facts of an individual case, an expert's qualifications and role in the case, and the law and rules of evidence in any particular jurisdiction. However, whether such assessments are admissible or inadmissible in court, they can be useful in evaluating a case, in meaningfully identifying and presenting evidence, and in positively impacting client safety. The Danger Assessment, for example, begins with presenting the client with a calendar and asking the client to mark the approximate dates of prior aggression and violence and rank those incidents on a scale of 1-5 indicating the severity of abuse. For purposes of the danger assessment, the calendar extends one year, but while asking a client to think about the last year, there is no reason that a lawyer cannot extend the calendar to cover the entire length of the relationship. Doing so early in a case will provide the opportunity to identify corroborating evidence such as medical records, employment attendance records, and witnesses to injuries or excited utterances. Using an actual calendar invites a client to think specifically about each month or week covered in the calendar instead of just about the episodes of violence that might be the most immediately memorable. Using the calendar may reveal an escalation in the type or frequency of manipulation, control, and violence or a pattern to the escalation of violence in a particular relationship.

The Danger Assessment then proceeds to ask 20 yes/no questions to assess the presence of risk factors that research has identified as risk factors for fatal and near-fatal domestic violence.  Some of the questions might seem to be obvious indicators of risk. For example: Has the physical violence increased in severity or frequency over the past year? Or does he threaten to kill you? Other questions might be less intuitive lethality risk factors. Does he own a gun? Is he unemployed? Is he an alcoholic or problem drinker? Does he control most or all of your daily activities? Is he violently and constantly jealous of you? Has he ever threatened or tried to commit suicide? Does he follow or spy on you?

In isolation, some of these questions might not seem relevant to assessing risk or proving domestic violence; but in culmination, they often paint quite a different picture. This picture is useful in identifying a client's risk for the client's own safety. It can also be useful in convincing a court that domestic violence has occurred, that it is likely to occur again in the future, or that the perpetrator's lifestyle and violence endangers the children as well as the client. Of course, in the evidence-gathering stage and in the courtroom, these yes or no answers often need further explanation and illustration, but the Danger Assessment can help a lawyer and client prioritize, organize, and explore traumatic experiences in a way that can aid in the identification and logical presentation of evidence.

Importantly, whether the results of a specific lethality assessment are admissible in a particular case or not, many judges handling domestic violence cases have been trained or have knowledge about lethality risk factors. For example, resources on the National Judicial Institute on Domestic Violence's website include Dr. Campbell's Danger Assessment and the Domestic Violence Risk Assessment Bench Guide used by Minnesota Judges in domestic violence cases. The latter instructs judges to obtain information regarding the identified risk factors through all appropriate and available resources and to communicate with practitioners that judges expect information regarding these factors. A judge's judicial knowledge about domestic violence lethality factors provides a lens through which it is appropriate for a judge to evaluate evidence in domestic violence cases, whether the evidence specifically identifies lethality risk factors as such or not.However, if lawyers handling these cases are not also familiar with the lethality risk factors, the relevant evidence may not be admitted for courts' consideration.

Beyond the use of information gathered through a Danger Assessment in court, clients' understanding of their own circumstances can improve through utilization of a Danger Assessment. This can lead to an increase in safety planning and utilization of domestic violence resources like shelters, counseling, and hotlines. To encourage these results, lawyers working with clients who have been victimized by domestic violence should be aware of national, state, and local resources available to assist clients in becoming and staying safe. The National Domestic Violence Hotline and the National Network to End Domestic Violence are excellent resources and can help identify state and local resources available to help secure safety.  

A lawyer's recognition of lethality risk factors can improve court outcomes for a client who has been victimized by domestic violence. More importantly, a lawyer's recognition of lethality risk factors can improve a client's chance of survival.

Start Your Section Membership Today!

Join the ABA's Section of Family Law and gain value and insight in your career, no matter your experience level. Signing up is easy and grants you member-only access to the latest news, information, and thinking.

Want more personalized content? Tell us your interests.