THE (E)X FACTOR: ADDRESSING TRAUMA FROM POST-SEPARATION DOMESTIC VIOLENCE AS JUDICIAL TERRORISM.

• Author: Tucker, Lisa A.

ABSTRACT

When victims of intimate terrorism leave their abusers, the abuse rarely ends. While many victims exit intimate relationships to try to escape the abuse, for most, their bravery in leaving only angers their abusers further. Rather than lose control over their victims, many abusers continue to manipulate and terrorize their former intimate partners for years post separation. Many use the court system, a place where victims seek justice, as a battering tool against them, engaging in what some have termed 'judicial terrorism."

Remarkably, although post-separation abuse has been recognized and researched since the early 1970s, no law review article has, to date, focused entirely on post-separation abuse as an independent manifestation of domestic violence. While many legal scholars have discussed the social science evidence that victims are most at risk of physical violence or homicide when they first leave their abusers, none have described in depth the emotional and psychological abuse through which perpetrators may continue to coercively control their victims over the years and decades to follow.

Indeed, the most recent domestic violence typologies have identified "intimate terrorism" as the most persistent and pernicious form of abuse. Intimate terrorists coercively control their victims, sometimes through physical violence, but always through emotional and psychological abuse. Whereas other types of domestic violence tend to cease post separation--affirming the very reason why many victims choose to leave intimate relationships--intimate terrorism typically does not. Although the intimate terrorist may no longer have physical access to his victim after she leaves, he can continue to coercively control her through stalking, threats, and family court litigation.

Importantly, post-separation intimate terrorism retraumatizes victims, preventing them from healing and building new lives; the abuser counts on his ability to continue to victimize and coercively control his victim when he no longer has the close proximity to abuse her physically. To cast the spotlight on intimate terrorism that occurs after the end of an intimate relationship, particularly through the court system, this Article draws on research about the retraumatization experienced by crime victims who have participated in prosecuting their attackers to describe the trauma post-separation abuse victims experience in family court litigation. It then suggests areas for reform, supportive assistance, and further inquiry.

INTRODUCTION I. DOMESTIC VIOLENCE BEFORE, DURING, AND AFTER SEPARATION A. Intimate Terrorism B. Post-Separation Abuse II. THE POWER DIFFERENTIAL IN POST-SEPARATION INTIMATE TERRORISM III. JUDICIAL TERRORISM IN POST-SEPARATION ABUSE A. Financial Abuse as a Component of Judicial Terrorism B. Judicial Terrorism in Child Custody Cases C. The Overall Impact of Judicial Terrorism IV. RETRAUMATIZATION THROUGH JUDICIAL TERRORISM A. Negative Impacts of Retraumatization B. Institutional Betrayal V. RECOMMENDATIONS FOR REFORM AND AREAS FOR FURTHER INQUIRY A. New Solution #1: Change the Setting for Most Court Appearances B. New Solution #2: Borrow from the Criminal Court System in Adopting a Victim Advocate Model in Family Court C. Areas for Further Inquiry CONCLUSION INTRODUCTION

"The mother's condition following her divorce has been analogous to that of a slave chained to false accusations, constant allegations and hatred. A human being deserves better." (1)

Since at least the early 1980s, social scientists have documented that "[t]he majority of domestic assaults reported to law enforcement agencies occurred after the couples had separated." (2) Moreover, "[s]ome women experience violence by their ex-partner for the first time during separation. For many other women post-separation violence is a continuation of violence that began during their relationship with their partner." (3)

Just like domestic violence in an existing relationship, post-separation abuse may take a variety of forms. (4) One social scientist has described it as "any type of violence perpetrated by a former married or cohabiting male partner or boyfriend subsequent to the moment of physical separation." (5) Most commonly, this type of abuse may include "economic and legal abuse, use of children and other loved ones, escalated intimidation, [and/or] coercion and explosive violence." (6)

Over the past fifteen years, social scientists have sought to categorize domestic violence, including post-separation violence, into types. (7) While many women (8) who experience post-separation abuse may have been physically abused during the relationship, almost all were also victims of coercive control violence, or intimate terrorism. Most victims of intimate terrorism continue to be targets of abuse even after separation; while the physical violence often ends due to lack of proximity, the emotional and psychological control continue unabated. (9)

To begin an in-depth discussion of post-separation abuse and intimate terrorism, this Article uses by way of example the concept of judicial terrorism, (10) or, as others have called it, "litigation abuse," (11) "abusive litigation," (12) "procedural stalking," (13) "court-related harassment," (14) "legal bullying," (15) and "retaliatory litigation," (16) to set into relief the particular processes and impacts of judicial terrorism as a form of post-separation abuse. The judicial system provides a particularly appealing venue for the abuser to continue to pursue his own abusive ends. (17) Just as there has been little discussion of post-separation abuse in the legal literature, there has been no concerted effort among legal scholars to explain how abusers avail themselves of judicial processes to further terrorize their victims and to force ongoing communication and conflict. (18)

Indeed, many experts consider judicial terrorism to be a form of stalking, whereby the abuser forces the victim to see him in person and in court. (19) The litigation process may require her to reveal very personal information about herself. (20) While Tennessee and Washington have very recently passed laws to limit this "litigious form of domestic assault," (21) no other states have yet followed suit, perhaps because post-separation abuse itself goes largely unrecognized.

Reports from victims who have already left relationships with intimate terrorists are replete with concerns about continued coercive control and judicial terrorism, (22) making the absence of coverage in legal scholarship even more puzzling. As a journalist recently reported, "[a]fter a breakup, the courts are often the only tool left for abusers seeking to maintain a hold over their victims' lives. The process costs money and time, and can further traumatize victims of intimate-partner violence, even after they have managed to leave the relationship." (23) Despite widespread awareness of this malicious use of the court system, as one domestic violence expert asserted, "I think it's the least understood and most overlooked form of abuse that I know of." (24)

Post-separation intimate terrorism and judicial terrorism are of particular concern because of the long-term retraumatizing effect they may have on victims of domestic violence. Abuse in an ongoing relationship is traumatic, (25) often to the point where a victim chooses to leave her batterer in the hopes of ending the abuse. (26) When abuse continues post separation, the victim is revictimized--in leaving, she sought safety, but she has now learned that even a home apart from her abuser offers no refuge. (27)

And when the abuser takes the victim to court, often repeatedly, each encounter may traumatize her again. She is forced to defend herself against her abuser, appear in the same room with him, and listen to him accuse her of wrongdoing or inadequacy. (28) Additionally, because the court system largely does not recognize or understand post-separation intimate and judicial terrorism, the very forum in which the victim seeks safety and justice may deny her both, retraumatizing her in yet another way. (29)

With both abusers and the courts, the power differential weighs against the victim. At first, she may perceive both as safe havens: a happy relationship, a just and protective legal system. Post separation, however, her perspective may change, perhaps becoming more realistic. A victim may recognize that her abuser is more powerful because he has learned her vulnerabilities, (30) because he is physically stronger, (31) because he is vengeful, (32) or--in this patriarchal society--merely because he is male. (33) The court system is powerful by its very nature; it is by design an overseer, an entity that orders and controls. (34) When a victim of intimate terrorism is forced to confront and interact with both her abuser and a judicial officer at once, the revictimization may be so overwhelming that she relinquishes any power she actually has. Feminist legal theory and justice therefore demand that intimate terrorism, judicial terrorism, and retraumatization through vexatious litigation be widely recognized and remedied.

This Article comprises several parts. Part I begins by reviewing the most recent research into domestic violence typology. Then, it defines and explores the concept of post-separation abuse and reviews the social science literature on intimate terrorism after a victim leaves her abuser. Part II describes the power differential in coercive control violence and discusses why this power differential is an important issue for feminist inquiry. Part III explains how judicial terrorism is a legal, prevalent, and pernicious form of post-separation abuse that is particularly egregious because it may be state-sanctioned and long-lasting. (35) The section then reviews the scant legal scholarship on using the court system as a form of domestic abuse, particularly with respect to forcing a victim to spend money...