Speaking of Women's Rights: Another Hurdle:Domestic Violence Survivors' Battles in the Courts

Friday, October 30, 2015

Another Hurdle:
Domestic Violence Survivors'
Battles in the Courts

By David Ward

“The most horrible sufferings have been not only physical, they have been emotional, psychological, and financial! He never stops
harassing me—the courts are his legal playgrounds.”

Have you ever thought of the court as someone’s “legal playground”? These are the words of a domestic violence survivor who, even after separating herself from her abuser, continued to face abuse in an arena she believed would provide protection: the courts.

And she isn’t alone. Domestic violence is about power and control, and the abuser’s need for those things doesn’t stop if and when a survivor chooses to leave. So it is often the case that abusers will try to use the legal system to continue exerting power and control over the survivor, often for years after the relationship has ended. We call this pattern of abuse abusive litigation—also sometimes referred to as retaliatory litigation, legal bullying, paper abuse, and stalking through the courts—and is pervasive in courtrooms across the country.

Abusive litigation can take many forms. The abuser can flip the story, portraying himself as the victim by seeking his own protection order against the survivor or her family out of retaliation. He can sue the survivor for defamation if she reports his abuse. Or, most commonly, he can use child custody or divorce proceedings to repeatedly force the survivor into court, seeking modifications to the parenting plan or filing frivolous motions to delay the process. Essentially, an abuser can turn the courts into another weapon against the survivor.

Legal Voice has worked tirelessly in courts and legislatures to ensure the law is on the side of survivors. We’ve secured workplace rights for survivors, helped to uphold and strengthen Washington’s domestic violence protection order (DVPO) process, and protected survivors from housing discrimination. But we know that changing the law is not enough. We need to make sure that our courts are also educated about domestic violence, including abusive litigation.

Over the past year, we have done in-person trainings with judges and attorneys on this problem, teaching them to recognize the patterns of abusive litigation and to address the issue within their courtrooms. We were especially excited to present a training on abusive litigation earlier this year to 140 Washington judges at this year’s Spring Judicial Conference. Additionally, the dedicated volunteers on our Violence Against Women Workgroup and I have written a chapter on abusive litigation that will be included in the new update of Washington State’s Domestic Violence Manual for Judges, an important guide that is distributed to every judge in the state. And I am currently writing an article on abusive litigation for the Seattle Journal for Social Justice, based on interviews our workgroup conducted with survivors and advocates.

This week concludes Domestic Violence Awareness Month, but we know that awareness of the many issues impacting the lives of survivors and their families must continue year-round. And you can be sure that we will continue our work to stop abusers from misusing the courts as their “legal playgrounds.”

David Ward is Legal & Legislative Counsel at Legal Voice, where his work focuses on gender violence, family law, and LGBT rights.