Systemic Change is Needed to Better Protect Abuse Victims

In her 2021 article in the UCLA Journal of Gender and Law, Anna McLemore recounted the story of a woman who had been the ongoing target of her ex-husband, who tried to kill her three times. Even after being charged, he then filed endless court proceedings while serving his 30-year prison sentence behind bars. She had to appear in court, subject herself to cross-examination by her abuser and attempted murderer, and spend over $100,000 in legal fees. She publicly expressed her fears that she would be stuck in court proceedings with him until he got out of prison, stating, “It seems like he has more rights… than I do” (McLemore, 2021).

Many of my clients have echoed this phrase throughout their journey with the legal system, highlighting the seemingly endless rights of their abuser that often trump their seemingly limited rights to protection. From the police being unable to pursue stalkers because they were in a public place; to the judges who refuse to rule against an abuser’s right to file malicious lawsuits, the court system often gives the benefit of the doubt to an abuser over protecting their victims. We need better solutions and systemic changes. But what can be done?

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Some experts I have consulted with suggest charging abusers with the court and legal fees to deter them from filing frivolous lawsuits, but this solution only benefits victims if they make it that long. After spending all their savings in hearings and continuations, discoveries, and other motions, victims may go into debt with their attorneys or credit card companies. This can often be upwards of tens of thousands of dollars or more — before even seeing a judge. Furthermore, the mercy of the judge determines whether or not to charge the abuser with those fees. With both parties claiming they have been wronged, each accusing the other of abuse, judges have an understandably hard time knowing who to believe.

One existing option for victims being harassed by frivolous lawsuits through the family court system is to file a response of tort. This means the victim or their counsel claims that a lawsuit was filed with the intention of doing harm. However, this is little help to victims whose abuser hired a legal team. While it may be extremely difficult for the victim to prove that a lawsuit was filed frivolously or maliciously, it can be extremely easy for a skilled lawyer to make their abuser’s frivolous lawsuits appear to have legal merit.

Even still, the best a successful response to tort usually yields is compensated legal bills, while most abuse victims want freedom from their abuser’s harassment in the first place. Filing a tort keeps the victim in court with their abuser, accumulating additional court, filing, and attorney fees (Wade, 1986). Many victims will lack the financial wherewithal to even attempt it.

One state, Tennessee, has started paving the way to better protection for victims. Becoming the first state to enact a law to specifically address abusive litigation in the family law context, Tennessee passed a law in 2018 where courts can “impose pre-filing restrictions on abusers who are found to be misusing the court system to harass survivors” (McLemore, 2021). Under Tennessee’s new law, judges can hold a hearing in cases of intimate partnerships to determine if the plaintiff has filed the lawsuit(s) “primarily to harass or maliciously injure the defendant” and, if so, dismiss it. The judge can also enforce pre-filing restrictions on future actions for four to six years.

In short, courts need to better recognize situations of post-separation abuse through abusive litigation. By recognizing when the plaintiff is clearly using the courts to harass and financially devastate the defendant, we validate the post-separation abuse experiences of victims. Judges can be hesitant to impose restrictions on a plaintiff’s right to file lawsuits, but laws like Tennessee’s create a legal pathway for them to prevent further litigation abuse.

We need more education on post-separation abuse within the court system, especially in family courts. This would help judges recognize the patterns of behavior and abuse tactics like harassing, litigation abuse, or child custody abuse. According to Emmaline Campbell for the UCLA Women's Law Journal, abusers are “master manipulators,” and we need educated judges and courtroom staff who can recognize the patterns and profiles of abusers (Campbell, 2017). When they can see red flag behaviors for what they are, legal authorities can put these people through stronger scrutiny, thus prioritizing the safety of victims.

Campbell recommends that judges use this education to hold identified abusers in contempt after the first violation of a court order. This will cut short their ability to reschedule endless and time-consuming court hearings to keep punishing their victims. Abusers who continue to file malicious lawsuits and make endless motions should also receive sanctions (Campbell 2017).

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This education can also empower judges and law enforcement to avoid using dismissive language around obvious situations of abuse, like “high conflict divorce” or “bad breakup.” These labels attribute blame to both parties, and calling a victim “high conflict” in their own case of abuse further traumatizes them, drives self-doubt, and can set back their recovery process.

Abusers use the courtroom as their stage to perform dominance and control. Abuse, post-separation abuse, smear campaigns, stalking — these are behaviors of a disordered person, not a petty argument. Any reference to it as “mutual” is gaslighting and victim-blaming.

Excerpted, in part, from my book: It's Not "High-Conflict," it's Post-Separation Abuse. How Abusers Take Advantage of the Legal System to Continue to Instill Abuse.

If you are dealing with post-separation abuse or any kind of domestic violence, call The National Domestic Violence Hotline at 1 (800) 799–7233.