Across the world, millions of women experiencing violence and coercive control by an intimate partner turn to the law for help. Lawyers1 and justice systems ill-equipped to deal with this complex issue are often accused of missing, and even compounding, harms. Heather Douglas’s Women, Intimate Partner Violence, and the Law documents her study of this phenomenon. Her book is based on the results of a four-year study in which she conducted up to three interviews (n =178 interviews in total) with 65 female survivors of intimate partner violence (IPV) in Australia. Douglas sought survivors of differing backgrounds. All of the women Douglas interviewed had experienced a range of abuse from their partners, with 85% experiencing physical violence, and all some form of emotional or psychological abuse. For most of the women, the abuse continued after they left their partners, often during the study and in their interactions within the legal system. Financial abuse through actions that compound the cost of accessing the law emerges as a key theme.
Applying a feminist methodology, the book tells extended stories of women experiencing IPV. Through the perspectives of these women, the book provides a comprehensive overview of the system they encounter (child protection services, policing, courts, lawyers, and judges). The system-wide insights of this very well researched book cannot be canvassed here. Rather, this review considers the IPV survivors’ perspectives on Australian lawyers’ work. Douglas’s longitudinal approach provides an opportunity to hear how the women “construct their narratives about their interaction with the legal system and its actors and how this changes over time.” (P. 13.) What we read are “journeys [that] were harrowing, long, and expensive” (P. 2) and stories that illustrate the “messiness of the law.” (P. 6.) For example, Alex (not her real name) carefully recorded that she was required to attend civil and criminal courts on 31 occasions over a 6-month period. (P. 65.) The trauma experienced by Alex and many other women is exacerbated by the actions of their partner in filing unmeritorious applications, appeals or causing excessive delays through adjournments. The interviewees saw these as tactics motivated by a wish to control and abuse–“The courtroom is his playground,” Sandra said. (P. 166.) Douglas describes this as the “weaponization” of the legal system. (P. 182.)
In some cases, the system itself compounds harms where, for instance, women are provided with minimal information by the police about criminal charges that might impact family law applications, or the risk to those on a spousal visa of being deported when they end an abusive relationship. Legal processes, including legal actors, are often poorly equipped to recognise such dangers and ensure survivor safety. In many cases, legal abuses occur because of self-representation, yet lawyers are sometimes implicated in the abuses–acting on client instructions to prolong processes and adopting aggressive courtroom behaviours. Some women described unethical practices (such as lawyers contacting the other side’s client) and being pressured to inappropriately settle or withdraw from litigation in the face of a hostile opponent.
Yet lawyers’ professionalism is generally not faulted in these survivor accounts of systems abuse in Australia. Indeed, the women give mostly positive accounts of their own lawyers. This adds weight to international evidence of the importance of specialised training in IPV2 and adopting an ethic of care, which involves strategies of understanding the complexity of the client’s context and allowing the client to decide on what they seek from the law. These approaches assist survivors to persist with their legal actions, as much as providing legal expertise. This is not to say that the book espouses an ethic of care focused on relationships at the expense of seeking justice. There is strong evidence here that women expect their lawyer to assist in achieving results-–holding an abuser to account, securing a safe future-–while also valuing the professional who does not compound women’s trauma in their experience of the legal system.
Yet despite acknowledging a valuable role for a trained legal adviser, the book presents lawyers as a somewhat ambivalent presence in a complex and harmful system. In particular, Douglas highlights the cost of lawyers and of access to the legal system. While we have long documented the cost of lawyers, this is another detailed, client perspective on the compounding and wide-ranging nature of such costs. For instance, cost can lead to long-term detriments–some women described deliberately turning down better employment to keep their wage at a level where they could receive limited state-funded legal services, thus compounding their socio-economic disadvantage. In most stories, most women struggled to find affordable representation, changed lawyers and self-represented. Many described the actions of their ex-partner as adding to their legal costs and that “the lawyers didn’t seem to have any real way of protecting me from this legal abuse without it costing ME more money.” (P. 167.) This frequently led to stress, compounding debt, and sometimes inappropriate legal outcomes. This Australian experience is likely to be replicated in many other jurisdictions.
Many women adopted strategies to manage cost. One woman enrolled in a law degree “just to have access to all the legal databases,” contending that a deferred university debt was cheaper than up front legal costs (perhaps a less translatable Australian experience, P. 178). Others deliberately unbundled legal services by strategically accessing free community sector services for advice and document preparation, while raising money for a private lawyer to draft a key document or provide one-off advocacy. The disaggregation of tasks within multiple concurrent legal cases sometimes provided successful outcomes, and, significantly, allowed some to manage the pace of their interactions with the law. While this is consistent with contentions over several decades that unbundling legal services provides access to justice benefits,3 other women in Douglas’s study, particularly those with poor English language skills, described being at a significant disadvantage without consistent professional assistance. As others have argued,4 this is a nuanced and complex question, rather than a quick fix.
This leads to the second aspect of ambivalence about the lawyer role in the women’s long journey through the law: Douglas’s study suggests, as Rebecca Sandefur’s work has argued in the US, that lawyers might be most useful in simply providing routine procedural advice, connection and support in a system in which they are repeat players.5 Government-funded and private IPV specialist service providers are important sources of referral enabling women to avoid lawyers without appropriate expertise and keeping costs down. Indeed, in some instances of self-representation, women did better without a lawyer–achieving results that they had been advised were impossible and, in one case, by taking an action that would be professionally ethically unadvisable (removing a child from the jurisdiction to avoid a custody claim). Thus Douglas’s study seems to decentre survivors’ lawyers within a complex system. Douglas’s book does not aim to address ethical and regulatory issues faced by lawyers representing clients impacted by IPV. However, her system-wide, client-centred account provides an important set of challenges for the Australian profession practising in this field. These are ones we should consider seriously so that lawyers do not compound the harms, and the costs, of accessing justice.
- Lesley Laing, Secondary Victimization: Domestic Violence Survivors Navigating the Family Law System, 23 J. of Violence Against Women 1314 (2016).
- Michael Saxton, Laura Olswzowy, Jennifer MacGregor, Barbara MacQuarrie & Nadine Wathen, Experiences of Intimate Partner Violence Victims with police and the Justice System in Canada, Journal of Interpersonal Violence (2018).
- Jessica Steinberg, In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services, Geo. J. on Poverty L. & Pol’y (2011), available at SSRN.
- Rebecca L. Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact, 80 Am. Sociological Rev. 909 (2015), available at SSRN.