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

• Author: Schulte, Katherine E.
• Position: Continuation of II. Two Sides of a Domestic Violence Case B. The Abusive Father 2. Taking Steve's Story to Court through Conclusion, with footnotes, p. 169-196

1. Entrenching Misconceptions About Abuse

   The main strategy students employed was to distract the court from the underlying issues of abuse. This was accomplished on two fronts: creating confusion about the credibility of the allegations, and projecting a non-abusive image of Steve. Steve's counsel called Meg's credibility about the abuse into question by pointing out the lack of "objective" evidence. (108) This simple strategy can be very powerful in family courts. The popular assumptions about domestic violence are that it is physical, it is reported as soon as it happens, and when it is reported, there are consequences for the perpetrator--all of which have been proven to be the exception, not the rule, in most domestic violence cases. (109) Encouraging the court to operate from these premises, then framing the current case as one that does not fit that mold, multiplies the impact by discrediting the allegations at hand while entrenching misconceptions about domestic violence. (110) At the very least, the question of abuse becomes a "he-said/she-said" situation that the court has neither the time nor resources to investigate. (111) Ultimately, this strategy encourages the judge not to engage with allegations of abuse at all because of the additional complexities it would cause. (112)

2. Exploiting the Court's Bias towards Abusive Fathers

   Similarly, the students attempted to minimize the significance of the abuse allegations by making Steve's situation appear neither uncommon nor unsympathetic. The image projected of Steve was of a concerned father and blameless victim of his wife's retreat from the marriage with the children. In an attempt to promote his credibility, the students also presented an alternative argument regarding the abuse: even if Steve had "put his hands on" Meg, it was a singular occurrence he regrets. Appearing contrite about physical violence, yet without admitting to abusive attitudes, made it seem that Steve did not pose any ongoing risk of violence. (113) This served to obscure any connections between Steve's behavior and the potential risk he posed as a parent.

   The students also advanced Steve's agenda for sole custody without regard to whether it was a realistic or legitimate goal. An abuser's sudden desire for custody can send a very powerful message to a family court judge who is reluctant to impede the participation of an interested father. (114) Here, the students anticipated that the court would apply a double standard to evaluating the "best interests of the children," in that Steve's expressed interest and potential as a father would be given more weight than Meg's history of caretaking in determining custody. (115) However, this approach ignored whether any improper motives were driving Steve's goals. (116) For example, Steve attempted to win Chris's loyalty with tickets to the sporting event, but then used Meg's denial of the request to incite Chris's disrespect for her. (117) These actions suggest an attempt to confuse Chris about who was to blame for the disappointment, (118) or worse, an effort to disrupt Chris's relationship with Meg. (119)

3. Drawing on Negative Stereotypes of Abused Mothers

   Finally, the students chose to strengthen Steve's parenting position by weakening Meg's. Rather than grappling with the more challenging task of demonstrating Steve's capacity to be primary caretaker of the children, they focused instead on why Meg did not deserve to be the primary custodian. They drew attention to her struggle with depression and suggested that her parenting capacity was compromised. (120) By exploiting Meg's vulnerabilities, the students tried to show that Steve was healthier, more caring, and more competent as a parent. (121) In turn, Meg looked like a composite of destructive stereotypes about domestic violence survivors: a crazy, untruthful, bad mother. (122)

   Of course, the students were not to blame in concluding that this approach would be an effective way to meet Steve's objectives. Representing Steve was a very challenging task, and our job as teachers was to provide the students with the skills to undertake it. Our focus on the challenges that would arise in the context of representing Meg had left the students unprepared to represent Steve. Similarly, the theoretical frame of reference we used throughout the course had also made representing Steve more difficult; by highlighting the way abusers contribute to the problems facing abused mothers in family court, we had made the students more susceptible to doing what they thought was expected of an abuser's attorney. Lastly, our criticisms of the family court system were not followed with suggestions for how to challenge the problematic practices. As one student reflected at the end of her experience representing Steve, "If there is a way to adequately protect a client's interests when s/he has been accused of domestic violence, without denying the domestic violence, minimizing the domestic violence or addressing concerns about the victim's credibility, I still do not know what it is." (123) In short, we had shown the students a problem and expected them to address it without giving them the tools to do so.

   3. Teaching Students to Represent the Abusive Father

      Following this experience, we realized that in order to counteract the problematic lawyering practices that compound abused mothers' negative experiences in family court, we had to provide students with alternative strategies for representing the abusive parent. Domestic violence advocates have devoted significant attention to what it means to represent those who have been abused, and how to teach law students to embrace those principles. (124) But what has not been explored is how those lessons might translate in the seemingly incompatible context of representing the abuser.

      Guiding students through the exercise of representing an abusive father became an unexpected opportunity to reinforce the skills and values that define domestic violence advocacy. (125) Our intent was not to be dogmatic about our values as domestic violence advocates, but rather to help students gain insight into how values can shape one's role as attorney in an abuse case. We wanted to encourage students not to be consumed by their role, but to step back from and consider the larger goals of all actors in a family law case involving domestic violence. The students could then decide how they could carry out the representation in pursuit of these goals. In order for the lessons of this exercise to be transferable, the students had to take ownership of the decisions they were making about how to represent their client, as well as the justifications for those choices. (126)

      The strategies described below follow the traditional lawyering process of assessment, decision-making, and action (127) as seen through the eyes of the domestic violence practitioner. At each stage, we articulated where "bright line rules," such as ethical and statutory constraints applied; what existed between the bright lines, however, was the murky area where students had a choice about how to define and execute their role. (128) With a backdrop of the dynamics of abuse and the corresponding challenges of domestic violence practice, we aimed to provide the students with options that would promote rather than compromise the safety and well-being of the children and abused mother.

      1. Redefining Zealous Advocacy

         In asking a student with feminist, altruistic ideals to represent an abusive father, the usual response is that it is impossible to reconcile this task with the concept of zealous advocacy. (129) Many students assume that zealously advocating for Steve means they should use the legal system to further his agenda at all costs. (130) That students would come into the course with this understanding is no surprise. Given the power differential in domestic violence cases and the extremely high stakes, lawyers fight hard to protect their clients' rights and interests. (131) The byproduct of this image of zealous advocacy is that abusers are demonized or portrayed as simply the force to fight against. (132) The popular concepts of zealous advocacy may also prioritize "winning" over broader issues of professionalism and fairness. (133) These concepts often draw on criminal defense imagery, which is at best misplaced in the family court context. Furthermore, it may also unnecessarily put the goals of lawyers on each side of a domestic violence case at odds. (134)

         An attorney in a family law case is more than just a "hired gun." (135) The first step in representing Steve is therefore redefining zealous advocacy as helping him make constructive decisions in pursuit of legitimate interests. The same definition is compatible with advocacy for an abuse survivor, in that the principles of client-centeredness, empowerment, and risk reduction still apply. (136) Yet in representing either party, the student may have to break from non-directive, nonjudgmental advocacy in order to raise a safety concern or manage his or her client's expectations about what is possible in family court. (137) The degree to which such a "reality check" is required may be more apparent on one side than on the other, however. (138)

         A related premise we ask the students to work from is that the judge will prioritize the children's well-being. While this would seem to be a given in custody litigation, what is often overlooked is the interdependence of a child's well-being with his or her protective parent's safety and the abusive parent's accountability for both. (139) The challenge in incorporating these principles into representing Steve is that the dominant view of abusive fathers--that they are presumptively deficient parents--offers little guidance on how to understand and address the root causes of their abusive attitudes and behaviors. (140) Yet if the focus is solely on the relationship between Meg and the children, Steve may be...