Among the many abuses Jane suffered at the hands of her former husband Thomas, her most vivid memory was when Thomas poured hot water on her and told her she deserved it. The seemingly calculated, almost premeditated nature of that abuse would be a harbinger of what was to come after she escaped the relationship. Jane Davis(1) married her husband Thomas in December 1994. Thomas was physically and verbally abusive during their marriage. Jane finally decided to obtain a domestic violence protection order against her husband in Kitsap County, Washington State. Jane’s ex parte protection order was granted in January 2007; but three days after the court granted the order, Thomas was arrested when Jane called the police to report that he was violating that order. Those charges were eventually dropped by the prosecutor. In February 2007, the court granted Jane a one-year protection order. Later that month, Jane filed for divorce and in June 2008 the court granted the divorce, ordering primary custody of their son with Jane because Thomas had engaged in abusive use of conflict.
Thomas appealed that decision and then separately filed a lawsuit against Jane, against Jane’s former employer and against Jane’s boyfriend. He also filed lawsuits against judges, law enforcement officials and court officials who had been involved with the case. In total, Thomas ended up pursuing eight separate lawsuits. Not only were these lawsuits meritless, but this pattern of retaliatory litigation had a devastating impact on Jane’s life. Thomas based some of his abusive litigation claims on the very fact that Jane filed for a protection order and that she then reported violations of that protection order to the police. This type of abusive litigation based on reports of domestic violence deters vulnerable, low-income women from seeking out police and legal protection. Women fear that regardless of the merit of their complaints, they may at the very least be forced to make repeated court appearances to defend against such lawsuits.
A recent case that is being reviewed before the California Court of Appeals, Ms. H v. Mr. H, presents a similar pattern of a domestic violence survivor seeking out the aid of law enforcement and being forced to defend against abusive litigation. In Ms. H v. Mr. H, the victim is being forced to defend herself against a malicious prosecution lawsuit brought by her abuser and former husband for the simple fact that she called the police when she needed protection. The calculated nature of retaliatory litigation speaks volumes about the need to exert control and power over a victim once that victim chooses to separate herself physically from her abuser. And ironically, the very legal system that a victim once believed would protect her from that abuser essentially becomes another weapon that can cause emotional and financial devastation.
Abusers may utilize a vast array of weapons to retaliate against victims in the legal arena. Common examples of litigation and the abuse of the legal process pursued by abusers against domestic violence survivors include:
- Suing or threatening to sue anyone who helps the victim, including friends, neighbors, advocates, lawyers and law enforcement officials. Even the threat of litigation makes it harder for the victim to find help.
- Abusers will portray themselves as the actual victims by seeking their own retaliatory protection orders against the victim, her friends and her family.
- Suing the survivor for defamation if the survivor reports the abuse to anyone.
- If the survivor is an immigrant, abusers will make reports to immigration authorities in an attempt to have the survivor deported.
- Turning child custody litigation into a nightmare is another tactic, including seeking sole custody, abusing the discovery process by seeking embarrassing or irrelevant information about the survivor, trying to relitigate issues that have already been decided by the court and dragging the process out as long as possible by repeatedly seeking continuances.
- And even after a divorce is final, abusers can force the victim back into court time and again by seeking to modify parenting plans or child support orders, or by bringing contempt motions against the survivor. Regardless of the merit of the motions, the victim is still forced to go back to court and confront the abuser, miss work and spend money on attorneys.
- Judges may be also targeted if the judge rules against the abuser, wherein the abuser attempts to have the judge disqualified from the case.
- And if the abuser loses in one court, they may bring similar litigation in a different court in order to prolong the litigation abuse.
Courts, and in particular family courts, must begin to recognize the patterns of abusive litigation to protect the needs of domestic violence survivors. Survivors need to believe that they can report domestic violence and seek police protection without the fear of legal repercussions that may cost victims time, money and peace of mind. Protection orders are a critical component in enhancing the overall safety of domestic violence survivors. However, protection orders can only be effective if the enforcement of those orders result in tangible consequences for batterers. The very act of filing for a protection order and reporting violations is a very frightening and daunting experience; but when you add the threat of retaliatory litigation to that basic and legitimate fear of immediate violence, the fear the battered victim faces now becomes far greater. The threat of litigation adds an additional hazard of constant contact with a batterer within the courtroom. Moreover, the very place where victims once thought they could turn for protection from their batterers becomes delegitimized as a safe zone – the courtroom becomes just one more place where a victim cannot escape her batterer. The courtroom becomes yet another avenue where security is undermined. If a domestic violence victim is too frightened to obtain a protection order or report a violation, then her abuser will simply have far greater opportunities to continue the abuse.
Having the courage to pursue a protection order and report violations in and of itself creates an increased potential for violent repercussions. The added threat of retaliatory litigation only serves to heighten the already significant barriers to effective enforcement of hard sought after protection orders.
When a former spouse or partner files lawsuit after lawsuit, the domestic violence survivor becomes trapped in the abusive relationship despite being physically separated from the abuser. These lawsuits are particularly difficult to fight when the domestic violence survivor has limited finances and the abuser is acting without an attorney, or pro se. Courts tend to err on the side of permitting pro se litigants to continue to files lawsuits because courts fear cutting off legitimate access to the judicial process.
But there are ways for a survivor to defend herself against this type of abusive litigation. For example, Washington State has enacted an “anti-SLAPP” law designed to combat abusive litigation or “Strategic Litigation Against Public Participation.”(2) Anti-SLAPP laws protect individuals from litigation that is intended to deter or dissuade someone from communicating with a government agency, such as the police, or from making public statements regarding public issues. Generally, a SLAPP is a lawsuit intended to censor critics and suppress free expression by burdening someone with significant legal costs. Anti-SLAPP laws are designed to remedy the suppression of such free expression.
Washington’s anti-SLAPP law was first enacted in 1989, making Washington the first state in the nation to do so.(3) SLAPP lawsuits can come in many forms, such as defamation lawsuits or litigation directed against consumers reporting on businesses or products, such as in blogs. Domestic violence abusers may similarly use the courts as weapons to sue a former partner who has called the police to report abuse or when that abuser violates a protection order. These lawsuits affect domestic violence survivors throughout the country. In the 1990s, noted Massachusetts attorney Wendy Murphy successfully pioneered the use of the Massachusetts anti-SLAPP law to combat this type of abusive litigation directed against domestic and sexual violence victims.(4)
Anti-SLAPP laws provide civil immunity for domestic violence survivors whenever they make a complaint to a government agency, and in 2002, Washington’s anti-SLAPP statute was amended to remove any burden from the domestic violence survivor to prove that the complaint was made in “good faith” so as to not chill or dissuade victims from reporting violations of protection orders or any reports of violence to the police out of fear that they might be sued. Finally, in March 2010, the statute was again amended to expand the scope of the law providing, among other reforms, broader protections for the types of public participation covered under the Act. Significantly, the law now protects a person defending against abusive litigation from being forced through unnecessary and time-consuming discovery until the court decides whether the action should move forward or not. This reform in the law is particularly critical for domestic violence survivors who oftentimes are trapped by repeated court appearances where they are personally forced to confront their abusers. Halting discovery proceedings until the merit of the lawsuit can be established limits the degree of access the abuser may have with the victim inside the courtroom.
Unlike most domestic violence survivors, Jane was fortunate enough to obtain free legal representation from Legal Voice in Seattle while fighting off the abusive litigation she confronted from her former husband. Legal Voice is a nonprofit organization working to advance legal rights for women in the Northwest. Legal Voice’s Violence Against Women policy workgroup is working on developing strategies to address abusive litigation directed against domestic violence survivors.
In Jane’s case, Legal Voice invoked, among other legal issues, Washington’s anti-SLAPP law as a bar to her husband’s abusive litigation. The trial court found that the anti-SLAPP statute barred Thomas’s abusive litigation claims that were based on Jane reporting violations of her protection order. However, the Washington State Court of Appeals failed to further expand upon the trial court’s finding regarding the applicability and utility of using Washington’s anti-SLAPP law in the domestic violence context.
Sadly, most domestic violence survivors, primarily women, oftentimes do not have either the necessary financial or informational resources to obtain legal assistance when battling abusive ex-partners who are hell bent on trapping them under an endless mountain of legal paperwork and court appearances. These women often end up being victimized a second time, suffering extensive consequences from this abuse, such as losing a job or being unable to obtain proper child care because they are repeatedly required to appear in court. The economic and emotional repercussions provide yet another avenue for the victim to be victimized again.
And although an increasing number of states have enacted anti-SLAPP laws, only a small minority of those states has utilized the potential power of these laws to protect domestic violence survivors. Domestic violence survivor advocates must become the public voice of the politically powerless to advance the anti-SLAPP law potential across the country.
However, it is important to recognize the potential downside that anti-SLAPP laws can represent for domestic violence survivors. Anti-SLAPP laws can be used as a weapon against victims. For instance, victims may be prohibited from suing their abusers when the abuser attempts to harm them by making a false report to child protective services or by making a report to immigration officials.
Access to the courts should never trump the imperative for domestic violence victims and survivors to be undeterred from filing for protection orders and/or reporting violations of those orders because they fear being dragged into court. And courts can only strike a balance between preserving such access and protecting domestic violence survivors when they become better educated and aware of the patterns that present in cases of retaliatory litigation. This critical awareness and education campaign can only be communicated to the judiciary and the public through grassroots organizing from within the domestic violence survivor advocacy community throughout the country.