DELICATE WORK ON DOMESTIC VIOLENCE

Philip F. Carpio, Associate, Hunton & Williams, McLean, Va.

The concept of pro bono legal service is founded on two primary principles. The first is essentially practical — there is a documented and compelling public need for such assistance. The second rests on the ethical bedrock of the legal profession — an attorney has a fundamental responsibility to ensure equal access to justice for all. Nowhere are these two principles more evident than in the needs of the victims of domestic violence.

A lot of attorneys get butterflies or worse the first time they try to figure out the confusing scene in a courthouse or have to approach a judge’s bench. If members of the legal profession can be intimidated at first, imagine what the experience is like for an individual with minimal understanding of the judicial system.

In the realm of domestic violence, victims are often recovering from the physical or emotional effects of battery. Most are of limited means and often have additional fundamental concerns, such as shelter, food, and the care of small children. Many victims speak English as a second language, or come from backgrounds where the police and the judicial system are viewed with distrust and sometimes fear. For these individuals, the legal process can be as intimidating as the abusive spouse.

This is where the assistance of pro bono attorneys of the Domestic Violence Project can be invaluable.

The project enlists and trains volunteer attorneys to represent victims of domestic violence, with a primary focus on obtaining civil protective orders for battered spouses, children, and other family members who could not otherwise afford a private attorney.

Three of the protective order hearings I have handled demonstrate a cross-section of cases that volunteer attorneys can face.

The first case involved an immigrant family from South America. The husband had engaged in a long-standing pattern of spousal abuse, some instances of which his minor stepdaughter had witnessed, although he consistently denied his abusive behavior. He had been arrested for battery in one instance, and as part of his suspended sentence had to complete a counseling program. Despite those sessions, his pattern of abuse continued.

Several circumstances complicated matters, however. The family had limited means, the wife was not fluent in English, the husband was the sole wage-earner in the family, and he held title to the family home. If the wife pressed her abuse claim too vigorously, there was a significant risk that he would be incarcerated.

Even though incarceration may have given the wife a measure of short-term satisfaction, it was in the family’s long-term interest that her husband remain free in order to provide income to the family.

In order to resolve the case, I had to rely on the assistance of a volunteer interpreter, provided through Legal Services of Northern Virginia.

At the urging of the judge, both sides eventually agreed to a consent order which provided for mutual no-contact, granting temporary possession of the residence to the wife pending sale; granting temporary custody of the children to the wife; and providing for the payment to the wife of a monthly housing allowance after the sale of the family home.

This case illustrates the benefit of having counsel for both parties. The two sides were adamant in their positions, and the level of acrimony and fear was extremely high. Without counsel to facilitate a solution to an otherwise intractable problem, this case could have either maintained the status quo, or resulted in the incarceration of the husband. Neither of these outcomes was in the long-term interest of the wife and children.

The second case involved a brother physically and mentally abusing his disabled sister. The sister was middle-aged, suffered from a variety of mental and physical illnesses, and was heavily medicated. This was clearly a case where the petitioner was incapable of successfully advocating for herself.

Unfortunately, the petitioner did not have any direct evidence, other than her own testimony, to prove her allegations. There were medical reports indicating that she had suffered physical trauma due to battery, but no indication that the brother was the responsible party. The brother, of course, denied everything. This challenging “he said, she said” scenario was ultimately resolved with a mutual no-contact order.

The final case involved a husband who physically abused his wife and who had engaged in stalking behavior after she fled the family home. This was actually her second attempt at obtaining a protective order. The petitioner had voluntarily dismissed her first case because she wanted to give her husband a “second chance.”

Unfortunately, his abusive behavior simply continued. Sadly, this illustrates a common phenomenon in domestic violence cases — battered spouses are frequently persuaded to give disastrous “second chances.” Fortunately, we had eyewitnesses to the husband’s subsequent physical abuse and stalking behavior.

At the hearing, the husband — represented by counsel — stipulated to one most recent act of physical abuse, although he denied all the petitioner’s remaining allegations.

I persuaded the judge to enter a protective order forbidding the husband from further contact with the wife, provided the wife possession of the family residence and car, and gave the wife temporary custody of the minor children, with visitation rights for the husband.

For new attorneys, pro bono work for the victims of domestic violence provides an opportunity to exercise their trial advocacy skills and get their feet wet in the courtroom. The Juvenile and Domestic Relations Court has several unique features and procedural rules, but the hearings cover all the fundamentals of trial work — from opening statements, direct examination, cross-examination, evidentiary rules and objections, through closing.

Most important, the Domestic Violence Project performs a desperately needed public service. The clients who need pro bono services are often confused and afraid of the judicial system, almost as much as they are frightened by the abusive family member.

The courts also appreciate the assistance of pro bono counsel, who can provide needed guidance and a measure of stability to potentially volatile circumstances.

REFUGE FOR A WIFE BOUND TO SLAVERY

Todd Hutchins, Former Associate, Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C.

A few weeks ago, my client “Jane Doe” and I walked out of the Immigration and Naturalization Service’s Arlington, Va., Asylum Office with great relief that her asylum claim had been recommended for approval.

“This is my life,” she said.

She was not exaggerating. Had she been deported to her home country in East Africa, she certainly would have been horribly abused and quite possibly killed. I first read about Jane’s case in an e-mail from the Lawyers Committee for Human Rights soliciting pro bono legal assistance. At the time, Fried, Frank, Harris, Shriver & Jacobson’s public service counsel Karen Grisez remarked that “an asylum case is like a death penalty case, except you’re in a different forum.”

That certainly seemed to be true with Jane. A modern, educated, independent entrepreneur, Jane was married into a tribe that traditionally treats wives as slaves of their husbands. Jane’s husband shared his tribe’s belief that the payment to the bride’s family of the traditional dowry of cattle is tantamount to the purchase of the woman as a chattel for the husband to treat as he pleases.

Jane, who has long held the belief that women should not be slaves to men and that they should be granted equal rights, refused to be dominated like the women of her husband’s tribe. During a series of interviews, Jane revealed to me the facts that would show a nexus between her feminist beliefs and her husband’s persecution of her.

Jane’s husband abused her for refusing to obey his commands, saying, “In my tribe, women must obey their husbands or they will be beaten.” He abused her for criticizing female genital mutilation, which his tribe practiced to deprive women of sexual enjoyment. He often punished her for publicly expressing her feminist beliefs, telling her during beatings: “This is so you will have some new material for your women’s activism.”

Finally, the one time that she tried to leave him, he punished her for moving out without his permission by beating her unconscious and breaking her jaw, and he told her that he would kill her if she ever tried to leave him again.

Those facts and others showed that, as the feminist maxim holds, “the personal is political” — i.e., the domestic violence Jane suffered was not a mere “private” or “family” matter, but, rather, was a form of political persecution.

Nonetheless, I knew that the case would be a challenge. Gender-based violence, such as spousal abuse or female genital mutilation, is not generally grounds for asylum unless it is so severe that it constitutes persecution, and the victim’s government is unwilling or unable to protect her from her persecutor, and the persecution is inflicted “on account of” one or more of the five characteristics protected by the law of asylum: political opinion, race, nationality, religion, or membership in a “particular social group.”

Jane and I could easily show that the horrible abuse she suffered was more than enough to qualify as “persecution,” and we could also easily show that, because of her husband’s political influence, Jane’s government was unwilling to protect her from him. But persuading the INS that her husband abused her “on account of” one or more of the five grounds for asylum would prove more challenging.

As I took on the case, asylum lawyers and women’s human rights advocates were deeply concerned about the impact of a recent Board of Immigration Appeals decision, In re R-A-, which denied asylum to a Guatemalan woman who had been horribly abused by her husband, a member of the Guatemalan military.

Notwithstanding the husband’s belief in male supremacy and his use of violence to punish his wife for any resistance to his domination over her, the Board of Immigration Affairs ruled that R-A- had failed to show a causal nexus between her persecution and her political opinion concerning male domination over women, or her membership in a gender-based social group. Because the husband sometimes abused R-A- whether he was drunk or sober, even if she complied with his commands, and sometimes abused her for no apparent reason whatsoever, the board concluded that she was not persecuted “on account of” her political opinion or membership in a particular social group. Rather, the board found that she was targeted because she was his wife and largely because of his own “personal or psychological makeup,” and therefore did not qualify for asylum.

Given the uncertain reach and potentially disastrous impact of In re R-A-, gender-based claims now present issues on the cutting-edge of asylum law. The primary challenge in Jane’s case was to distinguish it from In re R-A- by showing that Jane’s husband persecuted her on account of her feminist opinions, and/or her membership in the particular social group, which I ultimately characterized as that made up of nonsubservient women married to men of her husband’s tribe who believe in that tribe’s traditional cultural norms.

To his credit, the asylum officer who interviewed Jane recognized that opinions are no less “political” just because they relate to such matters as family power relations and cultural gender roles, rather than such traditionally “public-sphere” matters as organizing a labor union or rallying an opposition party. That Jane’s asylum claim was granted means that the In re R-A- precedent has not established an asylum process inherently biased against women, whose political persecution frequently relates to such traditionally “private-sphere” matters as family relations and gender roles.

I found Jane’s case rewarding in the same ways that many of my billable matters have been; I enjoyed the opportunity to work on cutting-edge legal issues for a client I like and admire and believe should prevail on the merits, and, of course, I enjoyed winning. However, most of my billable matters for corporate clients — whether criminal matters or civil — were ultimately just fights over money.

In contrast, Jane’s case was gratifying in ways that no ordinary billable matter could be; I had the privilege of helping to protect someone from being tortured for her belief that women should be treated like human beings, not like cattle being bought and sold.

The satisfaction I derived from working with Jane far outweighed the late nights and weekends I spent at the office working on her case.

TRYING TO KEEP A FAMILY IN ITS PLACE

David Cahn, Associate, Piper Marbury Rudnick & Wolfe, Washington, D.C.

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