The Law | 02.15

Violence

FORGOTTEN VICTIMS

Unique challenges in LGBT domestic violence.

BY DAVID HAKIMFAR

”Attorneys have an obligation to their clients, to their profession, and to justice itself. They are obligated to use their expertise to guarantee that the system does not stray from the principle that lies at the heart of the law: justice for all who seek it.” —Final Report, President’s Task Force on Victims of Crime (1982).

Domestic violence is a subject that the LGBT community must confront head on. To this day, many states deny civil legal remedies to LGBT victims that are readily available to heterosexual victims.  Making it worse, many in the LGBT community find little support from friends and family due to the lack of awareness about same-sex domestic violence.

Statistically, domestic violence occurs in same-sex relationships as much as it does in heterosexual relationships. Domestic violence is defined as a pattern of behavior from which one partner of an intimate relationship uses physical violence, coercion, threats, intimidation, isolation, or emotional, sexual, or economic abuse to control the other.

In my years of practice as an attorney, there are four unique challenges in representing both victims and the accused of LGBT domestic violence:

  1. Identifying the true victim (The myth of ‘mutual abuse’);
  2. Victims who present themselves poorly;
  3. Creating a bias-free Court; and
  4. Identifying appropriate services.

When examining cases of alleged mutual abuse, the failure to look deeper can lead to unexpected consequences such as dual arrests, cross-protection orders, loss of employment, and loss of public benefits.  As a lawyer for my client looking to bust the myth of ‘mutual abuse,’ it is critical to investigate the context, intent, and effect of the abuse.

As a result of social barriers to the LGBT community, many do not present well and/or can relate in our courtrooms.  In many cases, little or no evidence of abuse beyond the victim’s and accused’s testimony is available. Cases come to my desk with either shoddy or no shoddy police report(s), dual arrests, little or no medical evidence, and no witnesses. There are also cases where a client is claiming long-term abuse, but have never sought help in the past. This most often occurs because many in the LGBT community try to conceal their sexual orientation or gender identity (due to perceptions of how they will be treated or to previous help-seeking experiences).  This also has a collateral consequence of seeming highly distrustful/hesitant to be forthcoming with information.

Which leads is to the challenge of receiving a bias-free courtroom.  It is true, the LGBT community does face additional hurdles in court, depending on how one may look at it.  Court forms, procedures, etc. often require the parties involved in domestic violence to come out.  This can be difficult where the victim cannot obtain competent representation (or any representation) and must navigate the system by themselves.  Also, court personnel (e.g. clerks, bailiffs) may lack training and act on implicit bias to mistreat LGBT people.

The final challenge also presents some of the solutions.

Safety provisions (stay-away, no-contact, no abuse, no harassment, no stalking, etc.) should be specific and tailored to the particular relationship, taking into account the tactics used by LGBT abusers.  An example includes prohibiting the abuser from outing the victim in any context: (e.g., “Respondent shall not disclose information about Petitioner’s sexual orientation or gender identity to others with the intent of harassing, isolating, embarrassing, or otherwise harming the Petitioner.”)

The Court should also include appropriate provisions granting economic and housing relief, which is especially important for LGBT survivors who may not have protections available to heterosexual married survivors.  A judge may also temporary custody provisions within protection orders in favor of the survivor, where the survivor has custody rights (biological or adoptive parent).


David Hakimfar is a trial attorney and senior partner of Hakimfar Law, PLC, and a member attorney of Pride Legal. He can be reached at 310-730-1250.