Abuse of Power

THE clearinghouse on police-perpetrated domestic violence

...providing a needed resource for victims and advocates

Effective Lawyering for Police-Perpetrated Domestic Violence Victims (Excerpt)

©2007 Diane Wetendorf, Inc. All Rights Reserved. (Excerpt of "Representing Victims of Police-Perpetrated Domestic Violence." Family Law Forum. MN State Bar Association Family Law Section, Fall 2007, 16 (2) 14-23.)

Complete text available in PDF

In the ABA's "Tool for Attorneys to Screen for Domestic Violence" [pdf format] attorneys who are representing a woman in a divorce or custody case are advised to learn whether she is a domestic violence survivor and consider how it affects her representation. It is critical that they consider the special circumstances of the victim of a police officer and how those circumstances will affect legal strategies, possible outcomes and safety planning.

An attorney must listen to the client and believe that she is in the best position to determine the optimal and safest legal strategy in her case. The client's goals may be frustrating, as they may appear contradictory. She may simultaneously want the court to protect her and hold the abuser accountable, but not want to do anything that might jeopardize his career. Attorneys representing victims of police officers must respect their client's ability to accurately gauge the abuser's reactions to legal strategies and the client's pre-existing safety strategies. It may be difficult for the attorney to have the client refuse to follow paid professional advice.

Standard Strategies Often Inadequate

The professional status, training and worldview of police officers who batter differentiates them from batterers in the civilian population. Officers' professional credibility allows them to explain, defend and summon institutional support and assistance from the very systems to which victims are theoretically supposed to turn to for protection. The attorney who understands how officers use police authority, police training, and police cultural ethos to reinforce their power and control over their victim is better prepared to serve his/her client.

The attorney must listen to the client's reasons for wanting or not wanting a protective order, and respect that she is in the best position to predict how the officer will respond. If she believes that he is likely to view a court order as a sign of aggression or declaration of war, prioritizing her safety may require not obtaining a protective order. If she feels that an order is necessary because of child custody or other consideration, the attorney should obtain information from the abuser's employer regarding policy on protective orders against officers.

Attorneys need to consider whether a judge is likely to issue a permanent order upon the expiration of the emergency order; if not, it may be better not to obtain the order. In the case where the abuser's attorney argues against a permanent order and is willing to compromise with a mutual order, the victim's attorney must be aware that this implies mutual responsibility for the alleged abuse.

If the victim is considering talking to the officer's supervisor or chief, the attorney can educate the victim about the officer's right to due process and explain what that entails.

Prosecutors are reluctant to damage the working relationship between the prosecutor's office and the police department. If the prosecutor does pursue charges, s/he typically reduces the charge to disturbing the peace, criminal destruction of property, or reckless conduct to avoid triggering the gun law.

Divorce and Custody Battles

The batterer may perceive the victim's filing for divorce as the ultimate betrayal, and a lengthy legal battle over his property, money, and the children may ensue. Victims' attorneys complain that departments stonewall the court's orders for employees' financial information and provide loopholes that allow officers to misrepresent their income.

Police officers who batter, like other batterers, typically threaten to win sole or joint custody of the children as a way to maintain control over their victims. They use the children as pawns or hostages while they make demands regarding assets and reduction of or release from child support obligations. Many victims report that their abusers have connections with attorneys who charge them lower fees as a professional courtesy. Victims do not have these advantages and quickly find themselves drowning in debt incurred by fees for their own attorney, a Guardian ad litem, psychiatric evaluations and expert witnesses.

Many abusive officers demand liberal visitation that accommodates their erratic schedules, causing hardship to the victim and the children. If supervised visitation is ordered, it is extraordinarily difficult to determine a safe place to exchange the children, as the victim may not feel safe doing the exchange at the local police department.

Fathers' rights groups instruct fathers' attorneys on how to charge the mother with Parental Alienation Syndrome. Despite some state legislatures banning the use of this false syndrome, many courts still allow it to base their award of custody to battering fathers. Some courts also believe that many mothers raise false allegations of child or domestic abuse in a custody battle. Battered women's attorneys must warn their clients that alleging abuse, even when true, may actually result in the court giving the abuser custody. Police officers understand how the system works and know that allegations of child physical and sexual abuse are very difficult to prove.

Safety Concerns

Professionals who represent or assist victims of domestic violence can also be targets of the perpetrator. It is not uncommon for the officer who batters to intimidate and threaten the GAL, the victim's and his own attorney, the custody evaluator, therapists and anyone else involved in the case. Few attorneys consider that an officer who batters has a range of intimidation tactics available, ranging from something as subtle as a sudden flurry of traffic tickets to the extreme of a false arrest.

Conclusion

Police agencies and judges may misuse their power of discretion to avoid implementing policies or enforcing the law against one of their own. When they do implement policies or enforce the law, they may place the victim in greater danger than before the system intervened.

Victims typically report that the abuser did everything he said he'd do and it all went the way he said it would go. Their attorneys are amazed at the twists and turns these cases take because of the batterer's ability to manipulate the system. They are stunned by the outcomes and their inability to predict or prevent the systemic abuse. Police officers who batter will continue to enjoy the protection of the legal system as long as attorneys, judges and other professionals involved in criminal and family court cases refuse to believe that some police officers do batter their intimate partners and their children.