Jennifer Beckstead

Domestic violence cases may be some of the most challenging and frustrating cases you deal with.  Their challenges differ depending on the area of law you practice.  For instance, if you’re a prosecutor, perhaps you want a clean, consistent, chronological recounting of events, but the story you get from the victim comes in fragments full of contradictions.  The original police report doesn’t match the victim’s testimony later on or you learn of cases not reported in the first place.

Perhaps you are perplexed by the victim recanting their story or returning to the perpetrator.  You wonder why the victim doesn’t want the perpetrator prosecuted.  You might have a hard time believing the victim.  Sometimes it is easiest to discredit them or look for ways to get rid of their cases.  You have a heavy caseload and you don’t have the time needed to deal with the messy and highly emotional aspects of domestic violence cases

All of this might lead to a feeling of helplessness in your ability to uphold justice and protect the community. Out of good intentions, you start to focus so heavily on the goal of conviction that you push victims too hard or treat them like they are your opponent.   As a defense attorney, you might emphasize apparent inconsistencies to discredit victims or have charges dismissed.  Prosecutors and defense counsel alike are, at times, villainized for the work they do on domestic violence cases.

Domestic violence can also present challenges for family law attorneys to protect the best interest of their clients.  Domestic violence creates a power differential that allows one partner to maintain control over another.  These controlling behaviors can continue long after the relationship is over, recruiting the legal system to play a role in the ongoing abuse.  When family law cases involve domestic violence, this power differential might be ignored, putting the victim at an unfair disadvantage.  In a system where the default is to view both parties as equal, it might be challenging to present the case otherwise, especially if the victim is not yet fully aware of their victimhood.

As an attorney, you have been trained to understand the law and apply the law to facts.  You are not a mental health provider who has been trained to work with survivors of domestic violence who are experiencing trauma-related symptoms.  Yet if your work involves domestic violence, there is a cross-over between the two professions that may leave you feeling ill-equipped to do your best work.  You may have questions about the impact of trauma and domestic violence on survivors and how you can be more effective in working with them.

In this article, I hope to answer some of your questions and continue closing the gap between the legal profession and mental health professions.

The Neurobiology of Trauma (Basics for Lawyers)

Survivors of domestic violence often develop patterns of behavior in response to the trauma they have experienced.  The human body is organized to respond to stressful situations, returning to equilibrium after the stressful situation has ended.  Trauma occurs when an individual’s perceived stress outweighs their perceived ability to cope with that stress.

The extreme or prolonged stress of domestic violence requires the brain and body to adapt by developing more extreme coping measures.  Each individual’s trauma response will be different, but some common things you may see with a trauma survivor are angry outbursts, guardedness and mistrust, sharing traumatic material as if it’s a rehearsed story that happened to someone else, rambling speech patterns, or a blank stare as if they are not fully there.  Other trauma symptoms may include flashbacks, shame, sexually reactive behavior, substance abuse, and high-risk behaviors.

These behaviors are not a conscious choice but are the result of a nervous system that has been on high alert for so long that it isn’t able to balance.  The nervous system is designed to alert the body and brain instantly to danger.  It produces stress hormones that get the heart pumping faster and muscles moving to either fight or run away from the danger.  When the danger is ongoing or the individual is unable to fight or run away, the nervous system stays in an activated state.

Consequently, even long after the threat is over, a traumatized individual’s body will continue to act as though it’s not safe.^[i]  This shift in the nervous system and accompanying neurochemicals in the body can also result in re-traumatization, as an individual becomes accustomed to this heightened state of activation and seeks high risk activities out of dependency or a need to “feel alive.”

This is one reason why individuals might return to their abusers, use substances, or exhibit what might be considered “promiscuous” behaviors.^[ii]  The behaviors that are often used to discredit survivors are actually symptoms with a neurobiological basis resulting from the trauma caused by their abuse.  A trauma survivor will likely already experience shame about these behaviors, and that shame is exacerbated when these things are brought up in legal proceedings.

There are many reasons why a survivor’s story about their abuse might not be clear, consistent, or appear credible.  When trauma happens, the part of the brain that manages logical reasoning, language, time, and linear thinking shuts down so that the part of the brain focused on survival can take over.  This is the part of the brain that codes short-term memories into long-term memories.  When the reasoning part of the brain shuts down, traumatic events become stuck in the survival area of the brain and are not turned into linear stories with a timestamp.

In part, this means traumatic memories are not always retrieved in detail or language.  Often, they are remembered in images, senses, or emotions.^[iii]  This can lead to flashbacks in which the individual re-experiences the trauma as though it is currently happening.  A traumatized individual might also dissociate, or blank out, and seem as if they’re not really present.  Flashbacks and dissociation may occur as an individual’s system gets flooded while talking about their abuse or testifying in court.  It may be the nonlinear way that their memories are coded and/or it may be their brain and body’s way of avoiding a flood of memories and re-traumatization.

Recognizing this neurobiological basis for the way survivors behave can serve to reduce their shame, as well as the level of frustration you experience as an attorney working with the survivor.  Returning to an abuser, not testifying against the perpetrator, and not being able to tell a consistent story about what happened may seem unreasonable or irrational, but it begins to make sense in light of the trauma that is experienced in the body.  Creating a sense of safety, which will be discussed later in this article, is paramount in reducing these symptoms and keeping the rational part of the brain online.

Challenges Specific to Domestic Violence

Domestic violence does not generally start with physical or sexual violence.  Often, perpetrators will start by preying on vulnerabilities or insecurities of victims by meeting their need for love or belonging.  Slowly, the perpetrator will start to gain power and control over the individual by isolating them, using threats or intimidation, minimizing or denying their reality, or putting them at an economic disadvantage.  Often, children will be used to control the other partner even after the relationship is over.

The methods for gaining power and control are varied, but a key ingredient in domestic violence is a power differential that puts the victim at a disadvantage.^[iv]  Systemic oppression such as racism, sexism, heterosexism, and ableism compounds on this power structure, increasing the risk for women, people of color, other-abled, or members of the LGBTQ+ community.^[v]

This process can follow a pattern.  For example, some abusive relationships experience cycles starting with a buildup of tension where power and control behaviors are at play, but there may not be physical violence.  This builds up to a violent episode in which the crime is committed.  Afterward, the relationship goes through a “honeymoon” period in which the perpetrator might apologize, blame, minimize, or deny the victim’s reality.  The abuser might also “love bomb” the victim with flowers, presents, or promises to be better.

During the honeymoon period, the abuser again preys on the vulnerabilities of the victim.  The tension begins to build again as the cycle continues.^[vi]  Over time, the victim may lose their sense of identity and self-efficacy.  Powerfully advocating for survivors may involve a process of helping them to tell the truth of their abuse by presenting facts about power and control.

The varied nature of the control exercised in domestic violence situations makes protecting victims of domestic violence challenging, and it is not a quick or linear process. Survivors face many barriers to leaving or testifying against their abusers including financial and survival concerns, fear for their safety or the safety of their children, or not believing that they can do it.  Facing the unknown may feel more threatening to survivors than the abuse they are currently experiencing which is familiar and somewhat predictable.  Being aware of the cyclical nature of abuse can help attorneys to understand barriers that survivors face when they testify against their abuser or walk away from the abuse.

It is especially vital for family law attorneys to be aware of controlling behaviors that may be present as they represent survivors in divorce and custody hearings.  Survivors are used to having their reality denied or minimized, which can make it hard for them to tell their truth in court.  Survivors may shut down or continue to make themselves smaller when their truths are also denied or minimized by the court.  Survivors may not feel like they can fully accept the truth of the abuse out of fear that they will be seen as an alienating parent.  It’s also important to remember that survivors and their children will continue to have contact with the perpetrator after the proceedings are over.  Anything that is presented in court may become fuel for punishment from the perpetrator.

Working with Survivors in a Trauma-Informed Way^[vii]

Perhaps the most important first step in working with domestic violence survivors is to believe them.  Before a survivor of domestic violence meets with you, they have likely already experienced stigma and disbelief.  They have been shamed and discredited by both the abuser and other authority figures in their lives.  You may feel tempted to “interrogate” in order to get the facts that you need for your case but listening and believing are more effective tools for working with survivors.

Remember that they are coming to you for your legal expertise, but they are the experts on their experience.   Building a collaborative relationship is essential in working with survivors.  This begins with empathetic listening, in which you set aside judgments and assumptions so that you can understand the perspective of the survivor.  Come to the conversation with curiosity and you will be able to gather information from both verbal and non-verbal cues.  Watch their body language and listen for what they are not saying.  As you build a trusting relationship through warmth and empathy, paraphrasing what they say and asking clarifying questions, the survivor can feel safe to tell their story without re-traumatization.

It is essential in working with survivors to be aware of power differentials.  Work to lower the power differential as much as you are able.  Survivors of domestic violence might be used to authority figures telling them what to do or judging and shaming them.  They might come into this partnership expecting you to be another person who will let them down.  They might acquiesce to your expertise even when it does not feel right to them because of past experiences they have had with authority.

You can create a different kind of relationship with them than they’ve experienced in the past by sharing the power and seeking to understand their perspective and their needs.  As to the latter, sometimes survivors of domestic violence don’t recognize their victimhood.  What they experienced may be so normal to them that they don’t know that it’s abuse.  One way for an attorney to gather information from a survivor is to note and seek specific details about power and control in the relationship.  You might ask, “Does she call you names?” or “Does he degrade you in public?”

Finally, it is essential to be patient with the survivor’s process.  Give them time to be in a place where they can testify.  Survivors may get frustrated with the legal process as they expend emotional energy in preparation for a trial just to watch it get reset.  Simply checking in with them to let them know you are still there and working on their case even if there is nothing new to report can go a long way in keeping them strong and encouraged.

The health of the survivor is more important than any case could be.  This case is one small part of a survivor’s overall healing process.  Sometimes, legal justice helps but is not the answer to give survivors the closure that they need.  This is a person with a story to tell and you are there to help them tell their story and advocate for themselves.  Recognizing how difficult and traumatizing this process can be will help you to see their personhood rather than just a case number.

Vicarious Trauma

Working with domestic violence in the legal system is not easy.  If you practice in it, you probably came into this work with good intentions to help victims.  Over time, you may have experienced a sense of helplessness.  This work is messy, affords no simple solutions, and deals with some of the darkest aspects of the human experience.  This can lead to symptoms of compassion fatigue, burn-out, and vicarious trauma.

You might find yourself dehumanizing victims or becoming more and more cynical.  You might feel like checking out and disengaging rather than connecting with colleagues or loved ones.   Much as you consider a survivor’s wellbeing, it is also important to check in with yourself about how you are feeling and assess the impact this work may be taking on you.

For those practicing in this area, finding sustainability will be a key factor in your ability to continue to do this work.   Be intentional about the way you take care of yourself.  A common notion about self-care is that it involves luxurious bubble baths and massages.  The truth about caring for yourself, especially when you are continually exposed to trauma, is that it is hard work.

It involves being aware of your own trauma response and knowing what your nervous system needs to maintain or come back into balance.  It might involve activities that help you to calm and soothe your nervous system such as yoga or meditation, or more active movement to release excessive energy such as running or boxing.  Intentional self-care continually addresses an individual’s physical, emotional, mental, creative, spiritual, and social needs.^[viii]  Seeking mental health services can help you to build strategies for coping with stress that is overwhelming your system or to recreate meaning when it has been lost through the human suffering you were exposed to.

Good self-care will also address your professional needs.  Domestic violence and trauma specific training can give you the tools you need to work competently with survivors.  The National Center on Domestic Violence, Trauma, and Mental Health has created a handbook for attorneys that can guide the work you do.^[ix]  Working collaboratively with mental health providers and victims/witness coordinators can also enhance your effectiveness in working with survivors.  Creating a sustainable plan for managing your own reaction to trauma exposure will help you to be a more effective advocate for the trauma survivors you work with.

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[i] Van der Kolk, B. (2014). The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma.

[ii] Carnes, P. J. (2019). The Betrayal Bonds: Breaking Free of Exploitive Relationships.  Health Communications Inc.

[iii] Van der Kolk, B. (2014). The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma.

[iv] Home of the Duluth Model: Domestic Abuse Intervention Programs https://www.theduluthmodel.org/wheels/.

[v] Chaves, A. Z. & Hill, M. S. (2008). Integrating multiple intersecting identities: a multicultural conceptualization of the power and control wheel. Women & Therapy, 1:121-149.

[vi] Walker, L. E. (1989). Psychology and violence against women. American Psychologist, 44(4), 695–702.

[vii] Readers are referred to Merritt Dublin’s article, published next in this issue, which discusses trauma informed practice in depth.

[viii] Lipsky, L. v D. (2009). Trauma Stewardship: An Everyday Guide to Caring for Self While Caring for Others. Berrett-Koehler Publishers, Inc.

[ix] Seighman, M. M., Sussman, E., & Trujillo, O. (2011). Representing domestic violence survivors who are experiencing trauma and other mental health challenges: a handbook for attorneys. National Center on Domestic Violence, Trauma, and Mental Health.

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