Restoring balance to abuse cases: expanding the one-sided approach to teaching domestic violence practice.

Author:Schulte, Katherine E.
Position:Introduction into II. Two Sides of a Domestic Violence Case B. The Abusive Father 2. Taking Steve's Story to Court, p. 144-169
 
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INTRODUCTION

"Balance" is an elusive concept in the domestic violence field.* (1) Equilibrium can always be threatened by tension between attorney and client, between the parties and the legal system, and, of course, between the parties themselves. Abusive relationships are inherently unbalanced; the abusive partner maintains power and control by systematically overcoming the will of the other partner, often using violence and coercion. (2) When an abuse case enters the legal system, therefore, the playing field is anything but level.

The legal system does little to right this imbalance. The pervasiveness of how abuse is popularly misunderstood impedes sufficient legal responses to domestic violence cases. (3) The common beliefs about domestic violence are that if someone is abused they will immediately report it, leave the relationship, and the abuser will be held accountable for his actions. (4) The reality, however, is that the risks of disclosing abuse, separating from the abuser, and taking legal action often outweigh the benefits. (5) Not only can separation make a survivor less safe, but she may find herself worse off from a legal standpoint: facing criminal charges herself, being subject to a retaliatory protective order, or fighting for custody of her children. (6) Even when legal interventions do not cause additional harms, they may offer little help to a survivor whose experience does not conform to what the legal system promises. (7) In either scenario it is the system, not the survivor, which dictates what the survivor's options are. (8)

In custody cases involving domestic violence, the deck is even more stacked against abused women. Custody cases involving abuse have been confounding family court judges, practitioners, and litigants for decades. (9) While contested custody cases make up a very small percentage of the court's docket, most involve abuse allegations. (10) It is in these cases where the most is at stake. (11) By their very nature, domestic violence cases require careful, individualized analysis of past and potential risk. (12) However, the family court system's limitations make it nearly impossible to meet this need. (13) Instead, courts direct "all efforts and resources ... at having parents settle their differences and become parenting partners for life." (14) These attempts to level the playing field for both parents have a disproportionately negative impact on abused mothers. (15)

Domestic violence clinics have been working in observance of the tension caused by legal intervention in abuse cases for decades. (16) Domestic violence clinics encourage students to adopt a critical perspective about the legal system, (17) and focus instead on the importance of the attorney-client partnership in generating options for abuse survivors. (18) In support of these efforts, domestic violence clinicians embrace a core set of principles in teaching students how to represent abuse survivors. (19) These principles include "working collaboratively with clients subjected to abuse, client-empowering advocacy, maximizing options for women subjected to abuse, and looking beyond the legal system to redress woman abuse." (20) These approaches attempt to restore some of the imbalance caused by abuse by equalizing power between attorney and client. (21)

However, the way domestic violence clinicians teach about domestic violence practice is anything but balanced. Traditionally, domestic violence clinics haven given almost exclusive attention to the experiences of abused women as they navigate the legal system; these courses are, after all, "uniquely feminist." (22) Yet. a survivor's experience does not exist in a vacuum. To contextualize a client's experience, students must account for the competing interests of the other actors in a domestic violence case, namely, the abuser and the system itself. The dangers that accompany failing to acknowledge these complexities--simplifying or pathologizing clients' experiences, (23) substituting the advocate's judgment, and predicting outcomes (24)--can have dire consequences.

When a student views a domestic violence case through a narrow lens, the "right" outcome may seem clear. (25) Students bring anything but a balanced perspective about domestic violence to their clinic; indeed, many are righteous in their feminist ideals. (26) Yet these ideals can launch some students on a quest to "save" their client; (27) they may believe that "[j]ustice is whatever it takes for their client to prevail." (28) Other students may treat their client's case as symbolic of a larger plight, and they may see themselves as "soldiers in the battle against the ultimate expression of gender oppression." (29) Under either approach, students may ignore or demonize the abuser, "essentializing" him as the force against which the survivor must fight. (30) At best, such an approach is simplistic; at worst, it is dangerous. (31)

It is incumbent upon domestic violence clinicians to help students confront the truth that the experiences of abused women in the legal system exist in constant tension with the abuser and the system itself. The questions for domestic violence clinicians then become: how can we paint a more accurate portrait of domestic violence practice, so that students are aware of the challenges they will inevitably face? (32) In light of that reality, what additional tools can we offer students to push back against the practices that continue to disserve those who have been abused? After all, "[w]e want to mobilize, not paralyze them." (33)

The answers may lie in looking for new strategies for restoring balance to abuse cases. Instead of simply focusing on advocacy for the abused, this article proposes giving students the simulated experience of consecutively representing both parties to a custody case involving domestic violence, so as to provide them with a more balanced perspective about this field of practice. (34) While it is standard clinical pedagogy to develop a theory of a case that considers the perspective of the "other side," (35) the approach proposed in this article goes beyond thinking through both sides, by putting the students in role as counsel for both sides. (36) Immersion in a disorienting experience, combined with supervision and feedback, (37) can help students develop the tools to "do justice" in the future by how they lawyer, not just who they represent. (38)

Developing a more balanced perspective need not be an apolitical endeavor, however. (39) This article does not advocate for equalizing the rights of the abuser and the abused; rather it advocates for righting the power imbalance that is inherent between the parties to an abuse case and the legal system. Specifically, this article provides guidance on how to teach students to safely and responsibly represent an abusive parent. (40) This type of representation relies on students' abilities to abandon the myopic definitions of zealous advocacy they may bring to a clinical course, instead helping their client make constructive decisions in pursuit of realistic and legitimate goals. (41) I suggest that the skills which are traditionally taught to law students working with those who have been...

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