Correcting myopia in domestic violence advocacy: moving forward in lawyering and law school clinics.

• Author: Carey, Camille

ABSTRACT

Lawyers and law school clinics have become myopic in their approach to civil domestic violence lawyering. This article argues that domestic violence lawyering should expand beyond its current focus on family law to move domestic violence law and practice forward. Drawing on theoretical frameworks from criminal law and feminist legal theory, this article proposes a lawyering model that expands individual representation across a wide spectrum of case types while also challenging systems that enable battering or do not support victims in their efforts to secure safety. Holistic representation in family law, public benefits, immigration, housing, mortgage foreclosure, tort, and financial matters, among other substantive areas, better serves domestic violence victims and reveals systemic problems facing victims. By taking a dual approach--broad holistic representation of individual victims combined with law reform efforts directed at systemic issues revealed through broad direct representation--lawyers and law school clinics can move domestic violence advocacy forward.

INTRODUCTION

We have become myopic in our approach to domestic violence, and it is time to move civil domestic violence lawyering forward. Currently, most domestic violence lawyering focuses on family law matters. While family law representation meets an important need for victims, (1) it is only one set of the multitude of potential needs for victims of domestic violence. Our focus on family law has routinized domestic violence advocacy and stymied understanding of its broader effects and possibilities. To move domestic violence law and advocacy forward, we need to more actively engage in dialogue about priorities for civil domestic violence advocacy and take braver and broader steps on behalf of victims.

I propose a model of civil domestic violence lawyering that seeks to better serve individual clients while also challenging structural barriers that impede our efforts to reduce domestic violence. Under this model, we broaden the scope of civil assistance to domestic violence victims toward the margins of possible advocacy and combine this "holistic" advocacy with reform efforts. Domestic violence practitioners should move away from overly-specialized family law practices, and individual assistance should include advocacy on behalf of victims in a breadth of cases, including but not limited to public benefits, immigration, housing, mortgage foreclosure, tort, and financial matters. This holistic approach includes representation in a wide variety of legal matters and advocacy in matters that some may regard as "non-legal." Such a model allows us to more effectively assist victims and develop new or underdeveloped areas of domestic violence advocacy. Equally as important, this advocacy can inform efforts on the systemic level. Holistic representation exposes us to and educates us about the systems and challenges victims face. We can then use this knowledge to challenge systems that enable battering or do not support victims in their efforts to secure safety. This simultaneous engagement of the individual and the systemic can help move our efforts to address domestic violence forward.

In framing this approach of simultaneously engaging the individual and systemic levels, I draw on two theoretical frameworks. The first framework is provided by the debate about domestic violence-related mandatory arrest and mandatory prosecution policies in criminal law. In that debate, there are conflicting ideologies about whether individual domestic violence victims' interests or society's interest in addressing domestic violence should predominate. The second framework is that of the tension between "particularity" and "generality" in domestic violence work, or individual victims' interests on the one hand and broader societal constructs that affect domestic violence on the other. Drawing from these theoretical frameworks, I argue for a model of civil domestic violence lawyering that simultaneously addresses individual victims' interests and societal interests in reducing battering. This model of domestic violence lawyering clearly identifies the goals of civil domestic violence lawyering and implements a broader spectrum of legal advocacy to serve individual victims while challenging systemic issues that enable domestic violence or fail to support victims in their efforts to obtain safe and independent lives.

To provide examples of this model in practice, I discuss MKB v. Eggleston, a case filed to ensure immigrant access to public benefits in New York City. I also discuss the development and design of the Domestic Violence Clinic ("DV Clinic") at Yale Law School. The DV Clinic serves not only as a model for this approach to domestic violence advocacy, but is also relevant because the process of developing the DV Clinic forced us to set priorities for efforts on behalf of domestic violence victims in a broader context. As in the development of the DV Clinic at Yale, law school clinics can and should serve as effective workshops to explore and develop innovative strategies for addressing domestic violence.

Part I of this paper briefly discusses the lawyering priorities of domestic violence practitioners, including the focus on family law, and looks at the existing literature on priority-setting for domestic violence clinics in law schools. Part II examines theoretical structures around which civil domestic violence lawyering priorities may be set, including the debate about domestic violence priorities in the criminal context and tensions between serving individual victims and combating domestic violence systemically. Part III proposes a framework for civil domestic violence work, including holistic representation and advocacy at the margins on behalf of individuals as well as advocacy aimed at systems. Part IV gives examples of holistic representation, including advocacy at the margins, and efforts at systemic reform through descriptions of MKB v. Eggleston and the DV Clinic at Yale Law School. Part V argues that a law school clinic is an effective forum within which to push forward domestic violence lawyering.

1. Current Priorities of Domestic Violence Lawyering: Practitioners and Clinics

   1. Practitioners

      Civil domestic violence lawyering primarily focuses on family law cases. In this context, I define "family law" as divorce, child custody, visitation, child support, alimony, paternity, and division of marital property cases. I also include civil restraining order cases, sometimes called protective order or order of protection cases. (2) Domestic violence lawyers generally provide only family law assistance and sometimes even specialize within family law. (3) While the focus of domestic violence lawyering on family law is limiting, individual legal assistance to victims in this area undoubtedly provides valuable assistance and meets client needs and demands. Before moving to a discussion of advocacy beyond family law, I would like to acknowledge some of the many benefits provided to victims by family law representation.

      Representation of victims, especially low-income victims, in family law cases fulfills a significant unmet need. Victims most commonly seek assistance from lawyers in family law matters. For domestic violence victims seeking to end their relationship with their abuser, family law representation helps to facilitate that separation. Child support and alimony generally aid in providing some additional financial stability to separating or separated battered women. Divorces provide a host of important possible outcomes: a change in legal status, custody of children, division of assets and debts, even a fresh start. Restraining orders serve a very important function in providing additional safety to abused women. (4) Also, victims are often defendants in lawsuits filed by their abusers and need representation. Finally, providing a buffer between the client and her abuser in court and in out-of-court negotiations regarding family matters is also an important act.

      The history of the battered women's movement offers some explanation for this focus on family law. Early movement efforts concentrated on establishing domestic violence shelters and reforming the criminal justice system. (5) Individual domestic violence victims, supported by the movement's efforts to provide immediate safety through shelter and police protection, flooded into the family courts to deal with longer term issues regarding their children, marital relationships, and child and spousal support. Domestic violence victims also began relying on family courts because of the failure of law enforcement to offer protection. Police officers would fail to respond to calls, or, if they did respond, would refuse to arrest the abuser and would instead refer victims to family court, arguing that the violence was a "personal matter." (6) Victims sought civil restraining orders in family court, which was sometimes the only forum for such relief, as some states historically only provided restraining orders as a remedy in divorce cases. (7) Victims went to family courts because these courts provided important remedies relating to their children--custody and visitation--and the potential for economic support: child support, alimony, and equitable distribution of marital property. Family courts also provided women with the legal tools to end their relationships, including these aforementioned remedies and divorce. (8)

      Legal remedies for addressing domestic violence also became focused on family law due to court evolution and design. Family courts and juvenile courts began emerging in the first two decades of the twentieth century as a result of Progressive era reforms. (9) These courts were developed to handle criminal acts committed against children and spouses outside of the criminal courts. (10) The goal of establishing family courts was to preserve family unity rather than...