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June 10, 2019 Feature

Introduction: How Legal Systems Continue to Fail Victims of Domestic Violence: Barriers, Challenges, and Solutions

Kelly Alison Behre

Domestic violence continues to exact a heavy toll on our country. In spite of a growing body of law developed in the past three decades to respond to domestic violence, domestic violence rates remain high. As family law lawyers and judges, it is imperative that we continue to educate ourselves about intimate partner violence and recognize the ways in which victims’ interaction with legal systems leads to both positive and negative outcomes. We should engage with social science to better inform our practice and decisions with regard to credibility determinations and safety planning. We should critically think about the barriers legal systems may create that limit access for some domestic violence victims, particularly women of color and LGBT victims, to obtain help, and we should work to dismantle those barriers. We should listen to victims of domestic violence and expand legal options, such as restorative justice programming and campus adjudication processes, that may better meet their goals. We must increase awareness of how abusers exploit legal systems as a coercive control tactic by using family, immigration, child dependency, and criminal court systems to harass their victims. We should use our experience and knowledge to help promote legislative policy that fixes federal, state, and tribal loopholes in order to increase safety for victims of intimate partner violence and their children.

This issue explores some of the legal challenges and barriers that continue to confront victims of intimate partner violence today. It includes an article addressing the complicated jurisdictional issues faced by Native American women, the lethal connection between intimate partner violence and firearms, the barriers college student victims of dating violence and stalking face in obtaining protection on campus, and the challenges victims of domestic violence face in family court. This issue only highlights a few of the unique challenges facing victims of intimate partner violence who engage with legal systems, but we hope it encourages you to think about the barriers marginalized victims face in your own community.

In Tribal Judicial Sovereignty: A Tireless and Tenacious Effort to Address Domestic Violence, Kelly Gaines-Stoner addresses the specific legal barriers Native American victims of domestic violence face in accessing justice. Native American women, particularly those living on tribal lands, experience the highest rates of domestic violence in the country, yet complicated tribal, federal, and state jurisdictional issues make it difficult for many to obtain and enforce civil protection orders. Gaines-Stoner describes the need for states to enforce tribal protection orders through full faith and credit under the Violence Against Women Act (VAWA) 2013 and for the federal government to provide tribes with access to the National Crime Information Center (NCIC) to enter tribal orders, as well as the need for tribes to have the ability to enforce their own protection orders against both Native and non-Native perpetrators in civil and criminal courts through the expansion of Special Domestic Violence Criminal Jurisdiction (SDVCJ) under VAWA 2013 in order to respond to alarming rates of domestic and sexual violence against Native women and children.

In Firearms and Domestic Violence Fatalities: Preventable Deaths, Professor Jane K. Stoever explicitly addresses the gendered nature of both firearm possession and intimate partner violence. She points out the connection between firearm possession and social images of white masculinity, as well as the research indicating that firearm ownership is more common in homes with intimate partner violence and that it places female victims of intimate partner violence at an increased risk of homicide. Stoever implores family law attorneys and judges to ask litigants about intimate partner violence and gun ownership and to utilize their opportunities for intervention in this public health issue. She further suggests legislative remedies, including the improvement of the accuracy of the National Instant Criminal Background Check System (NICS) and fixing federal loopholes that focus on firearm possession, rather than firearm and ammunition purchases, and currently exempt dating partners and stalkers from the Lautenberg Amendment and respondents in ex parte restraining orders from VAWA.

Laura L. Dunn turns to college campuses and highlights the murder of a University of Utah student as an example of how colleges are all too often unprepared or unwilling to respond to intimate partner violence and stalking. Scholarship about gender-based violence on campus usually focuses on sexual assault and Title IX, but Dunn’s article shifts the discussion to campus dating violence and the Clery Act. In Preventable Tragedy in the Lauren McCluskey Case: Addressing Campus-Based Intimate Partner Violence Under the Clery Act, Dunn addresses the rights outlined in the Clery Act for victims of intimate partner violence and stalking, including the right to information about campus-level protections and procedures, reasonable accommodations, prohibition against retaliation, options to report to law enforcement, information about civil protection orders, and resources available both on and off campus. She further explains that the Clery Act requires colleges to provide a “prompt, fair, and impartial” process for investigating and resolving complaints of intimate partner violence and stalking by trained campus officials and to ensure equitable rights to both complainants and respondents to participate in the campus process. Dunn offers the Clery Act as a tool we can use to advocate for colleges to improve their prevention efforts and better respond to intimate partner violence and stalking on campus.

In How Social Science Can Help Us Understand Why Family Courts Discount Women’s Testimony in Intimate Partner Violence Cases, Amelia Mindthoff, Professor Deborah Goldfarb, and I build on recent legal scholarship identifying how “discounted credibility” continues to disadvantage female victims of intimate partner violence in family court. Through this collaboration, we identify the history of gender bias in courts and consider misconceptions that may lead to gender-biased credibility discounting in intimate partner violence cases in family court. We address how flawed credibility determinations may result from inaccurate information about how victims of intimate partner violence act following incidences of intimate partner violence and how victims present in court when describing abuse. We discuss how the inaccurate belief some decision-makers have that they are human lie detectors may be particularly harmful to victims of intimate partner violence unable to make eye contact, provide a detailed and consistent narrative, or offer corroborative evidence. We further address how preexisting beliefs about victim credibility may lead to confirmation bias. We suggest that increased training about both intimate partner violence and trauma may decrease credibility discounting in family courts and encourage more collaboration between legal actors and legal psychologists.

These articles all identify barriers that continue to exist for victims of intimate partner violence seeking safety through legal intervention in different legal systems. They shed light on some of those who were left behind in the past three decades of domestic violence law and on the persistent challenges with the implementation of laws intended to assist domestic violence victims. We hope they prompt broader discussions about how legal systems can improve responses to intimate partner violence and best promote victim safety and autonomy.

Many thanks for this opportunity.

Kelly Alison Behre

Issue Editor

Director, Family Protection and Legal Assistance Clinic UC Davis School of Law

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Kelly Alison Behre

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Alison Behre is the director of the Family Protection & Legal Assistance Clinic at the University of California Davis School of Law.