Promising Practices for Victims of Sexual Assault and/ or Domestic Violence.
Domestic Violence Impacts Children
That children are adversely impacted by domestic violence is now well documented and intellectually understood.
Yet, attorney and court practices in some jurisdictions continue to reflect the out-dated notion that if the children
have not be physically battered, evidence of domestic violence will be of little import in fashioning orders and
agreements. Tragically, such denial places both the abused parent and children at greater risk for further harm, and
all but ensures that the abuser will have further involvement with the criminal justice system.
This article offers ten practical recommendations for improving our interventions in domestic violence legal matters regarding children.
Domestic violence impacts the clients of most advocates, probation officers and attorneys, but family and criminal
law practitioners, in particular, are positioned to dramatically improve victim (adult and child) safety and offender
accountability if they have learned how to intervene effectively.
Change Needs To Be Implemented
We must improve practices to change the current
truth that it is a toss of the dice whether abuse victims and their children can access a lawyer or court that take their
safety seriously. It is this chilling reality that informs the challenges to judges, lawyers and other professionals to
move beyond dialogue to action, beyond victim blaming to offender accountability. Promising practices exist and
will be highlighted; evidencing the many lawyers, judges and courts embracing the notion that justice is best served
when all parties are safe.
We have learned that often the best way to protect our children is to protect their mothers, who are desperately
attempting to achieve safety. Sadly, the most frequently asked question remains, “But, why do those battered
women stay?” The on going, uninformed antipathy toward abuse victims appears based on the notion of volition;
that they choose to stay with the abuser in the face of appealing options. Victims have many valid reasons for
staying with or returning to the batterers, not the least of which include a lack of financial resources, no job skills,
fear, low self-esteem and believing that it is in the children’s best interest to have their father or a father-figure in the
home. Many victims lack knowledge of their legal and other options, thus their response could be greatly impacted
by access to well-informed, zealous counsel and progressive courts.
1. JUSTAS UNIVERSAL SCREENING FOR DOMESTIC VIOLENCE HAS BECOME
PART OF THE STANDARD OF CARE FOR MEDICAL AND MENTAL HEALTH
PRACTITIONERS, OTHER PROFESSIONAL’S CLIENT INTERVIEW MUST
INCLUDE INQUIRY ABOUT ABUSE.
The attorney, advocate, probation officer or other professional must initiate questions about abuse in the household
(or relationship) during the first meeting, in order to assess the immediate safety issues, regardless of whether the
client is the victim, the perpetrator or the child.8 With any client reporting prior or current abuse, a civil protection
order should be fully discussed in the context of completing a SAFETY PLAN.
In addition to screening for physical harm, advocates and lawyers should routinely ask about the psychological abuse,
a common tactic of batterers to destroy the victim’s self-esteem. The abuser may have told the victim that no one will believe her,
that she will be found wherever she goes, that no one will want to help her and that the violence is all her fault.
Attorneys and advocates must tell their battered child and adult clients, “You are not to blame for the abuse,” and
“What your abuser has done is wrong,” and “Help is available.”
A lawyer’s silence constitutes collusion with the batterer and likely malpractice.
The Model Rules of Professional Conduct
Whether offering specific resource and program referral
information, or suggesting strategies with difficult victims, advocates are often able to decrease the stress of
handling such cases. All intervenors must remember that when a victim recants or seeks to withdraw orders, she is
trying to stay alive. If we become frustrated because the victim wants to dismiss the divorce or protective order, it is
helpful to say the following:
(1) I AM AFTAID FOR YOUR SAFETY.
(2) I AM AFRAID FOR THE SAFETY OF YOUR CHILDREN.
(3) IT WILL ONLY GET WORSE.
(4) I AM/ADVOCATES ARE HERE FOR YOU WHEN YOU WANT TO TALK OR LEAVE.
(5) YOU DO NOT DESERVE TO BE ABUSED.
Finally, domestic violence issues must be addressed in order to avert claim preclusion in future tort litigation against
the abuser. Many states require that all related issues be handled in the divorce action, effectively precluding
subsequent legal action as redress for the abuse. Thus, while victims are encouraged to detail the domestic and/or
abuse in the divorce pleadings to allow the court to make the proper safety and remedial orders, such information is
exactly what impedes future litigation. Especially if child and adult victims will need on-going therapy or will incur
other expenses as a direct result of the abuse, it is critical to either ensure restitution and a settlement that includes
future expenses, or that the final orders allow for further tort action to cover such expenses. Furthermore, most
divorce decrees include language stating specifically that the parties have resolved all matters between them, with
some even delineating tort claim prohibitions. If the child and/or adult victims have been emotionally traumatized,
compensatory as well as the punitive damages should be sought. Attorneys will also want to consider tort litigation
against other professionals whose improper interventions have harmed the child or adult victim, such as physicians,
law enforcement officers or psychiatrists.
I can not thank you enough,
Hope For Children Board Of Directors.