Family lawyers cross-examining victims of intimate partner violence (“IPV”) gets little attention in legal ethics literature. To be sure, there is a considerable debate and body of scholarship focused on the conduct of lawyers acting in criminal sexual assault cases, much of which can be analogized to IPV. However, in the family law context there are usually multiple issues to be determined, including the well-being of a third party (i.e.: a child). There are serious problems in family law with abusive spouses self-representing to gain access to their former partner and directly questioning them about the abuse. But my concern in this post is with the lawyers, those who perpetuate myths about women and victims of IPV in response to a claim of family violence. Some lawyers may rely on myths and stereotypes to undermine the victim’s credibility, most often in parenting disputes. This can be seen in allegations that the victim is lying to gain a perceived advantage in the family law case and in counter-claims of alienation (see here and here). In this post I consider the myth that women who stay in abusive relationships are either irrational or lying about the abuse, and I consider possible options for preventing family lawyers from perpetuating myths.
McLellan v Birbilis
In McLellan v Birbilis, 2021 ONSC 7084, Justice Nicole Tellier debunked (again!) the myth that women who stay in abusive relationships must either be lying or irrational for staying. In this parenting case, the parties had a 6-year-old child, and the father was found to have a history of violence (paras 76-77). The decision includes two short transcripts where the father’s lawyer cross-examined the mother on the abuse, and in doing so, suggested she was lying and irrational.
[72] On cross-examination, the mother was asked about why she did not leave the relationship. That verbatim exchange went as follows:
Q. And this total control – you were not able to exercise your will? You were, and this, you know continued for a very long, long time. And there were different exit points that you could have taken, right?
A. There were.
Q. And you never did?
A. I never did.
Q. You’re an educated woman?
A. I am.
Q. You are seeing mental health counselors?
A. I am.
Q. And somehow during this whole period, you weren’t able to find a way to separate from what you said was like a lifetime of terror?
A. It was a lifetime of terror. I couldn’t break free. Ryan was extremely dangerous. He constantly threatens suicide and every time he does, I felt responsible. I felt if I left, was he going to commit suicide? If I left, was he going to kill me? There was never- I- there was never a way for me to describe what it was like to be with Ryan except for the fact that I was afraid of those two things.
The inference underlying this line of inquiry is that if the abuse was truly so terrifying, the mother would have left sooner. There is a myriad of understandable reasons why victims of family violence do not or cannot leave their abusive relationships and fear is certainly one of them.
[73] The cross-examination continues:
Q. You didn’t actually even start a court proceeding right?
A. I started looking for lawyers pretty much right away and I retained a lawyer in August.
Q. That was a considerable time when you-I mean at that point, you were free of him right?
A. I don’t think I was ever free of him until the court process started. I still don’t feel free.
Q. Right. And is this something that might be- you know, this sort of frame of mind of losing one’s will in relationships, is this something that you know- you’re vulnerable to that? It could happen again.
A. You know, I have always had amazing relationships before Ryan and I have an incredible relationship now. Ryan was the only abusive partner I have ever had and I waited quite a long time before getting into a new relationship as well, to change that mindset.
This exchange, along with her evidence about her therapeutic supports, leads me to conclude that mother does not demonstrate a pattern of vulnerability or poor choices in relation to intimate partners that potentially exposes her or their child to excessive adult conflict or family violence.
Justice Tellier practiced family law before her appointment to the bench. She recognized that “fear” can inhibit a victim of violence from leaving an abusive relationship (para 72), and that a victim’s decisions ought not be compared to male-defined credibility norms (para 73).
Father’s counsel continued to make arguments based on myths and stereotypes. The lawyer suggested on cross-examination that the mother made “false reports to the police” (para 83) and tried to insinuate that the mother was “fabricating new events” (para 75). Instead, Justice Tellier drew from M(K) v M(H), 1992 3 SCR 6, to explain that the “phenomenon of memory repression as a means of avoidance and denial of past trauma is recognized by the Supreme Court of Canada in relation to victims of sex assault” (para 75). Any inconsistencies in the mother’s evidence were “likely emblematic of her suppression from memory of every single traumatic event she endured as a psychological defence or survival mechanism” (para 75). The parenting order that followed was reflective of a finding of family violence.
The Myth: Women Lie About Abuse
The myth that women lie about abuse is deeply ingrained. In Rebecca Solnit’s article “Cassandra Among the Creeps”, she drew a line from this myth back to Greek mythology and the story of Cassandra, “the woman who told the truth but was not believed”. According to the myth, the god Apollo gave Cassandra the gift of foresight to win her love, but when she did not return his affection, he cursed her so that nobody would believe her. Solnit observed that it is not uncommon today, that when “a woman says something that impugns a man, particularly a powerful one … the response will question not just the facts of her assertion but her capacity to speak and her right to do so. Generations of women have been told they are delusional, confused, manipulative, malicious, conspiratorial, congenitally dishonest, often all at once.”
The myths and misperceptions about IPV are so embedded in society that a #WhyIStayed hashtag went viral as part of the #MeToo movement. Survivors of violence used the hashtag along with their rationale for staying in an abusive relationship. A quick search on Twitter today shows that the hashtag continues.
The idea that women lie to gain an advantage in family court is also deeply embedded in family law’s history and can be traced back to fault-based divorce. Innocent wives who could prove their husbands’ cruelty were entitled to a divorce and alimony. In response, husbands would claim that their wives were liars and gold-diggers who had relinquished their entitlement to alimony when they left without a good reason. A violent physical assault was a good reason, but a less violent physical assault along with psychological, emotional, financial, or sexual abuse, were not.
The myth that women lie about abuse also resurfaced in the 1990’s around the enactment of the Federal Child Support Guidelines, SOR / 97-175. At that time, law reform to child support (and parenting generally) was viewed by fathers’ rights groups as disadvantageous to fathers. They suggested that mothers made up false claims about abuse to impede access and they thought child support orders were excessive.[1] Women’s concerns at the time focused on the underpayment of child support and concerns about family violence. A Special Joint Senate and House of Commons Committee on Custody and Access was created, but their consultations were described as biased against women. Nick Bala observed that the “hearings were not a sympathetic environment for women” who were even “heckled by men in the audience” when they were speaking about “spousal abuse and homicide” (pg. 185). In short, the myth that women lie about abuse is deeply embedded in the history of family law and women’s economic inequality following separation.
Today the myth that women lie underpins credibility issues in parenting disputes. (E.g.: raising a claim about family violence late in the process must mean she is lying; claims for supervised parenting or relocation may be disallowed if a court does not believe the victim.) As a result, when trying to engage the family justice system, survivors may be faced with allegations that they are lying or exaggerating about the abuse. Moreover, Indigenous women, women of colour, and gender-diverse people face additional layers of myths and stereotypes that reinforce the lying mythology as well as cause further disadvantage. The existence of these myths and stereotypes informs how women try to present themselves and navigate the justice system. Research by the Rise Women’s Legal Centre, for instance, revealed that lawyers tell survivors they need to “look reasonable” (pg. 37). Karin Galldin drew from empirical research to show that some women will try to adapt to the cultural standards and expectations of the justice system. Women will try not to “cry” or risk being perceived as “hysterical”, and they will try not to show too much “emotion” or “risk” being perceived as a “liar” (pg. 300). Indeed, recent research from the UK shows that some women do not raise concerns about abuse at all because they fear counter-claims and other negative consequences (pgs. 60-61).
The myth that women who stay in abusive relationships must either be irrational or lying about the abuse was recognized by the Supreme Court of Canada three decades ago in R v Lavallee, [1990] 1 SCR 852. (See Jennifer Koshan’s discussion about IPV-related myths and stereotypes that have been recognized by the Supreme Court of Canada here.) Justice Wilson recognized that the reasons some survivors may stay include “lack of job skills, the presence of children to care for, [or] fear of retaliation by the man” (pg. 887). In R v Malott, [1998] 1 SCR 123 Justice L’Heureux-Dubé added that a woman may also not leave because she may “need to protect her children from abuse, a fear of losing custody of her children, pressures to keep the family together, weaknesses of social and financial support for battered women, and no guarantee that the violence would cease simply because she left” (para 42). These myths and stereotypes were also recognized by Justice Mandhane recently in Ahluwalia v Ahluwalia, 2022 ONSC 1303 when she recognized the tort of family violence (under appeal) (paras 63-64).
A Professional Obligation Not to Perpetuate a Myth
In Ahluwalia the father also “suggested that the Mother should not be believed because, “she was an educated person”” (para 65). In that case Justice Mandhane also “warned the Father’s counsel during her cross-examination of the Mother that it would be improper to suggest that the Mother could not be believed because she immigrated to Canada with the Father after the first incident of violence” (para 65). Thus, in both Ahluwalia and McLellan the trial judge properly refused to make an adverse finding about a survivor’s credibility based on a myth perpetuated during cross-examination.[2] Yet, despite Lavallee and the caselaw that followed, the lawyers in these two cases still asked the questions and tried to suggest the survivors were lying or irrational.
Ideally family lawyers should have a professional obligation not to rely on or perpetuate myths and stereotypes about IPV. The National Association of Women and the Law (“NAWL”) and Luke’s Place tried to make this happen when Bill C-78 was debated. In their brief, supported by thirty-one other equality and anti-violence organizations, they suggested that the Divorce Act RSC 1985, c 3 (2nd Supp.) should include a section that would prevent courts from drawing “any adverse inferences based on myths or stereotypes about family violence” (pg. 6). Their recommendations were not followed. If they had been, lawyers would have been unwise to make arguments based on myths and stereotypes, and victims of violence would not be subjected to the humiliating and sometimes traumatizing questioning that occurs in family court. Adverse inferences based on myths would not be relied on in credibility assessments leading to parenting orders that may increase risk to victims of violence and their children. Family court would be a different place.
But that did not happen. Lawyers still perpetuate myths and stereotypes. Elaine Craig conducted extensive research on sexual assault trials. She argued that defense counsel are “ethically precluded from using strategies and advancing arguments that rely for their probative value on” rape myths “that have been legally rejected as baseless and irrelevant” (pg. 430).[3] A similar argument seems applicable here.
A challenge for family law, of course, is that most matters are resolved on consent, outside of court. A lawyer can suggest a victim is lying about the abuse in the context of a negotiation. The lawyer can threaten to cross-examine the victim on the abuse – an obviously difficult if not revictimizing experience. Indeed, if lying about abuse is perceived to be a retaliation tactic against the other parent, a lawyer may feel almost compelled to try to unmask the tactic and reveal the lie. Recall that pursuant to the Federation of Law Societies of Canada Model Code of Professional Conduct, lawyers have a “duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case”, albeit by “fair and honourable means” (R 5.1-1[1]). There is no separate rule for non-adversarial proceedings to distinguish proper conduct in negotiations, and the Model Code is completely silent with respect to family violence.
When family law matters are heard in court, judicial education would help to ensure that all judges do not rely on myths and stereotypes. As NAWL and Luke’s Place said in their brief, the successful implementation of the amended Divorce Act depends “on providing legal advisers and decision makers with education and resources to ensure they understand the complexities of family violence” (pg. 10). McLellan and Ahluwalia are examples of both that benefit and that need. (See also my previous column with Jennifer Koshan here.) Indeed Bill C-233, known as Keira’s Law, would do just that – amend the Judges Act, RSC 1985, c J-1 to expand the requirement for judicial education in sexual assault to include IPV and coercive control.
As I have argued previously here, the justice system needs considerable multi-pronged change to be fully responsive to family violence. In relation to the lawyer’s role, however, it is informed by the law. It follows that the law needs to do some of the work to dispel harmful reliance on myths and stereotypes about IPV. That said, Rosemary Hunter observed that “law is a two-edged sword for women”.[4] Women’s objectives need to be “translated into existing legal forms and concepts”, but when law is so fundamentally reflective of norms and institutions that serve to oppress women, law itself may be ineffectual (pg. 739). There are concerns about the law’s inability to protect women from the wider societally embedded discourses discussed in this column; and there are concerns about how law reform could be misused by legal actors with their own agenda causing unanticipated harms. However, lawyers and their clients seem to risk little when relying on myths and stereotypes during a victim’s cross-examination. It could be said that lawyers need to exercise their moral discretion in a way that avoids such harms, or that they ought to have a duty to the child’s well-being, but the challenge is the lawyers’ duty of loyalty to their client. Indeed, perpetuating myths and stereotypes may even lead to a favourable outcome for some clients if they lead a judge to favour the abuser’s credibility over the survivor’s. Thus, in my view, law reform is necessary. It is time for family law legislation and the Model Code to do more work towards preventing violence against women.
*Thank you to Jennifer Koshan for her generous feedback on a previous draft of this column.
_____________________________________
[1] See generally: Susan Boyd, “Demonizing Mothers: Fathers’ Rights Discourses in Child Custody Law Reform Processes” (2004) 6:1 J Association for Research on Mothering 52; Marie Gordon, “’What, Me Biased?’ Women and Gender Bias in Family Law” (2001) 19 CFLQ 53.
[2] See also: R v Thompson, 2019 BCCA 1 at paras 54-55; R. v. Brame, 2004 YKCA 13 at para 13; R v. Naslund, 2022 ABCA 6 at para. 141.
[3] See: Elaine Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (Montreal & Kingston, ON: McGill-Queen’s University Press, 2018).
[4] Rosemary Hunter, “Narratives of Domestic Violence” (2006) 28:4 Sydney L Rev 733 at 739.
The post Lawyers Perpetuating Myths: Why Didn’t She Leave? appeared first on Slaw.