By Michael T. Carney and Kirsten Heninger

If she’s really a victim, why didn’t she just leave? [i]

We have all heard the saying “Be the change you wish to see in the world.” While Mahatma Gandhi never actually uttered these words,[ii] the sentiment is not lost on the law students working tirelessly to change the world for those looking to escape abusive relationships in and around Ada County.

One of the first lessons for the students enrolled in the University of Idaho College of Law’s Family Justice Clinic is the difference in what is “legally” domestic violence and what it “really” is. When most people hear the words “domestic violence,” they often think about a story like the one told in popular songs such as the Dixie Chicks’s “Goodbye Earl,” where the woman wears “dark sunglasses” and “makeup to cover the bruise.”

What does not usually come to mind are the bruises and marks we cannot see but that cut just as deeply. Through emotional, verbal, and financial abuse, psychological scars are left that can be even more damaging than physical injury.[iii] Women consistently report that psychological abuse is the greatest source of their suffering.

If you do a quick search on Twitter for #WhyIStayed, you’ll be flooded with Tweets expressing the psychological toll of domestic violence, such as: “Because he had already shredded my self-worth with his words in a hundred subtle ways;” “I thought I wasn’t worthy of any other kind of love;” and “I believed I deserved it.” Mix in her friends saying, “If he ever hit me, I’d be gone!” and threats by the abuser to take the kids so she never sees them again. It becomes easier to see how much she’s been beaten without anyone ever laying a finger on her.

Trauma-Informed Practice is Good Lawyering

One afternoon a woman turned in an application for help from the Clinic that simply indicated she was “seeking legal advice.” After calling her to find out more, we learned her ex-boyfriend had taken their children and refused to give them back to her. We then found out he had not been involved in the kids’ lives for the better part of the last year. It had been three weeks since she last saw her children and she was looking for advice on how to get them back.

The catch: approximately two weeks prior, he offered to return the children to her on a couple of occasions, but she refused.

Good lawyering practices tell us it’s important to continue the conversation. Many attorneys would. Some may not. Who could blame someone for ending the call after learning she could have got the kids back but refused? After all, refusing to take your children when they are offered to you could be a sign that you did not really want to have them.

But the goal is not to teach at future lawyers, but to shape students into good lawyers – and thus, the call continued. We kept asking questions – and as the story developed, it wove an intricate narrative entwined with years of physical, emotional, verbal, and financial abuse. It became clear why she had refused to take the kids back. He was trying to force her into agreeing to custody and visitation terms that were completely unreasonable – and he wouldn’t let her see the kids until she agreed to his terms.

The practices described here are also an example of good trauma-informed practice. Not only do clinical students learn to recognize the effects of trauma in their clients’ decision making, they strive to put aside their own personal bias by understanding that victims of traumatic events often do not behave how we would want or expect. Our client here did not act how we expected someone would. By continuing with the story, someone who really needed and deserved legal assistance received it and was reunited with her children.

The Harsh Reality of Saying “No”

In 2019, the Clinic received well over 300 applications for legal assistance and the number is sure to only go up in the coming years. It would be easy for the clinic director to review each and make case acceptance decisions on their own. However, case selection is an important aspect of a successful practice.

This is why each week the Clinic faculty sits down with enrolled students to review all our new applications. Students present any applications they completed and give their assessment of the pros and cons of the cases. They are ultimately tasked with giving their opinion as to whether the Clinic should accept the case or not.

Young and eager law students start the semester passionately advocating for every single applicant. And as each week passes, the looks of dejection grow as applicant after applicant is declined. “But I’ll put in more hours!” or “They can’t afford another lawyer!” are common pleas, despite being reminded we must be mindful of our resources – including ourselves – and our commitments to existing clients.

On one particularly grueling Friday afternoon in October, students faced their toughest task yet. Story after story pulled at the heartstrings of everyone in the meeting. Women with next to nothing who fled a violent relationship and sought to divorce. Parents seeking to protect their children from child abuse. All people with next to nothing and nowhere else to turn.

Vigorous debate ensued. Voices were raised and a few tears shed. Ultimately a consensus was made and the two clients we had capacity for were selected out of the 13 applications being considered that day. Painful phone calls to the others were made before leaving for the weekend, but not before two very important lesson were learned.

First, domestic violence impacts far too many and despite endless passion and desire far too many are unable to obtain the legal services they so desperately need and deserve. And second, being able to obtain a legal education and help those we can is rewarding and life altering.

The success of the Clinic speaks for itself. In 2019, 262 lives were made better because of the students’ passion and desire to learn. Far more than would have been helped before the Clinic started in January 2018.

History of the Family Justice Clinic

Since 2006, the now Faces of Hope Victim Center (FACES) has existed as a safety net for all those experiencing abuse and neglect. The Center provides essential services all under one roof. From medical, safety planning, education, and basic needs, those impacted by domestic violence, sexual violence, child abuse, elder abuse, and stalking can access the services without driving across town to several different organizations.

Despite all the resources provided, Jean Fisher, a deputy Ada County prosecutor and FACES COO, saw a gap in services. Survivors coming to the Center were able to see a doctor, meet with a victim advocate to draft a safety plan, and get clothes for themselves and their children. Yet, the survivors were unable to talk to a lawyer about how to permanently separate from their abuser and protect themselves and their children.

Fisher also wanted survivors to have access to a lawyer to represent them in obtaining a civil protection order, a divorce, or to establish a child custody order. After years of hard work, Fisher and the University of Idaho College of Law agreed in 2017 to a joint effort to bring a licensed attorney and third-year law students into Faces of Hope. This allows the Center to offer complete crisis-intervention services to all those who walk through the front door.

In January 2018, the University of Idaho College of Law offered students the ability to enroll in an experiential program at Faces of Hope. Under the supervision of a law professor, the students provided free legal assistance for civil protection orders to those impacted by domestic violence in Ada County. Over the 18 months that followed, the program grew and transitioned into providing services in family law cases in addition to the civil protection help the group was already providing.

The experiential program was such a success that the University of Idaho College of Law faculty approved the creation of their newest law school clinic and the Clinic was born. In August 2019, the Clinic officially enrolled its first class of students. As word spreads among students of the educational experiences of their classmates – the ability to meet with clients, draft pleadings, negotiate with opposing parties, and conduct hearings and trials – interest in the program is through the roof. Clinic enrollment is full through the Spring 2021 semester and a waitlist is in place.

In such a short time the Clinic has shown great success and will continue to prove Nelson Mandela’s point that “education is the most powerful weapon which you can use to change the world.”

[i] Statistically, far more women are victimized by domestic and sexual violence and therefore we chose the female pronoun throughout. However, it is important to note men can and are survivors as well. The services of the Family Justice Clinic and Faces of Hope are open to both men and women experiencing domestic or sexual violence.

[ii] While some version of this “quote” appears on everything from inspirational posters and bumper stickers to coffee mugs and memes on the Internet, there is no evidence Gandhi ever said such a thing. While it sounds very much like he said, it seems at best to be a tweaked version of a 1913 writing about snakebites. Garson O’Toole, Be the Change You Wish To See In The World, Quote Investigator (Oct. 23, 2017), http://quoteinvestigator.com/2017/10/23/be-change/.

[iii] Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, 167 U. PA. L. REV. 399, 418 (2019).

Michael T. Carney is an Assistant Professor with the University of Idaho College of Law and oversees the Family Justice Clinic as its clinical director and staff attorney. For more than 17 years, he has been involved in advocacy for survivors of domestic and sexual violence. Prior to joining the University of Idaho, Professor Carney practiced with Mid-Missouri Legal Services, Corp. in Columbia, MO. He actively litigated hundreds of cases, including divorce, custody, paternity, evictions, and protection orders, among many others. He also created and supervised the Housing Practicum with the University of Missouri School of Law where advanced law students assisted in housing-related matters. When not teaching, Professor Carney can be found spending time with his partner of nearly 12 years, Megan, and his five-year-old daughter, Madelyn, or in the backyard making the neighborhood jealous with a variety of homemade Kansas City style BBQ.

Kirsten Heninger is a third year law student at the University of Idaho College of Law and a Fall 2019 Family Justice Clinic Student.