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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Screening for Domestic Abuse: What You Don’t See, May Be What You Get

Thirty years after Minnesota broke new ground with the Domestic Abuse Act, experience has shown how widespread is the problem, how readily it is overlooked, and how many are the issues it affects.  Attorneys across the profession are well-advised to screen for domestic abuse, for their own sake as well as their clients’.

This year marks the 30th anniversary of the Minnesota Domestic Abuse Act.1 When it was first passed, the act was described as “… providing a more efficient and practical remedy for some kinds of domestic abuse than the traditional alternatives.”2 At the time, the new law was thought to be an important development in which Minnesota joined a number of other states in providing previously unavailable remedies3 for victims of domestic violence and abuse.

Now, 30 years on, it is unfortunately true that domestic violence has not disappeared and incidents of domestic violence arguably are more numerous now than they were then. Egregious examples of domestic violence ending in homicide continue to occur, including the recent murder of a North Saint Paul police officer.4 Moreover, the American Bar Association has described domestic violence as “an epidemic.”5 Simultaneously, there have also been suggestions that some litigants in family law proceedings use domestic-violence provisions as a sword rather than a shield and to provide themselves with advantages in custody disputes, for example.6

Everybody’s Problem
The past 30 years under the statute have brought to light a number of important practical issues for practitioners. Experience demonstrates that issues of domestic abuse arise not only in “family law” situations, traditionally understood, but may underlie real property disputes, conflicts over an inheritance, witnesses’ reluctance to testify, or employment problems.  Regardless of the problem presented by the client, practitioners should be aware that failing to screen for domestic violence may violate an attorney’s ethical obligations and amount to malpractice.7 Consequently, attorneys, judges, and other professionals need to be cognizant of how prevalent domestic violence remains, need to become familiar with and screen for domestic violence and related issues, and should identify and use available resources to effectively represent domestic violence victims.

Awareness of the contexts in which domestic violence may have an impact has grown hand in hand with recognition of the dramatic impact that domestic violence has on its victims. Prior to 1970, domestic violence had been largely ignored as most people considered it to be a private matter.8 However, during the 1970s there was a wave of new family law legislation, including no-fault divorce, which sought to remove not only many of the stigmas attached to family law proceedings but also to recognize how vulnerable women and children are to domestic violence.9

This is not to suggest that men cannot be victims of domestic violence. Statistically, however, women and children are disproportionately victims. For example, in 2004, 2,396 people were murdered by a family member or intimate partner in the United States. Forty-three percent of the victims were wives or girlfriends, 12 percent were husbands or boyfriends, 43 percent were children murdered by a parent, and 26 percent were other family members. This trend had remained fairly consistent over the previous five years.10

Issues in Controversy
Most legislation that addresses domestic violence provides for a form of ex parte relief and assistance to petitioners in completing pleadings and courts have uniformly held that such provisions are constitutional.11 Thus, notification of an ex parte proceeding is not required at an ex parte hearing on a petition for an Order for Protection (OFP) under the act because of the unique nature of the remedy and extraordinary circumstances surrounding the need for it. The absence of notice does not violate an ex parte party’s due process rights because the act contains safeguards against error and the government has an extraordinary interest in protecting vulnerable persons.12

Early in the history of Minnesota’s act other issues arose as points in controversy, including initiating proceedings under the act; evidentiary standards; and excluding respondents from shared dwellings where the respondent had a possessory or ownership interest.13 Such difficulties were subsequently addressed through case law and by amendment.14

Apart from engendering controversy over legal issues, the act has proven to be of continuing significance in terms of case filings. In 2007, district courts handled 9,073 domestic abuse cases representing just over 10 percent of all cases.15 In 2008, 10,798 OFPs were filed with courts dealing with 3,119 violations (including multiple violations of the same order in some cases.)16

Multifaceted Problem
Given that Minnesota and other states now have longstanding domestic violence legislation and implementation experience, it can reasonably be asked why domestic violence remains such a problem. Of course, intrafamilial violence does not occur in all or even most families. This may explain why many people are unfamiliar with it, at least personally. However, domestic violence remains highly under-reported. Indeed, many domestic-violence victims may not even see themselves as domestic-violence victims. Alternatively, many victims simply lack the financial resources or support mechanisms necessary to escape chronic domestic violence. The emergence of both formal and informal support groups for domestic-violence victims and, crucially, the development of domestic-violence shelters has had some impact but, in most cases, there is too much need chasing too few resources.

Domestic abuse can take many different forms, not all of which were at the forefront of legislators’ attention in 1977. For instance, stalking is usually considered to correlate highly with physical harm and technological developments have made it easier and quicker for stalkers to monitor, harass, or harm their victims. According to federal Bureau of Justice statistics, more than one in four stalking victims reported that some form of cyberstalking was used, such as email (83 percent of all cyberstalking victims) or instant messaging (35 percent). Electronic monitoring of some kind was used to stalk one in 13 victims. Video or digital cameras were equally likely as listening devices or bugs to be used to track victims.17 While not all stalking victims would necessarily be able to avail themselves of the Domestic Abuse Act, many would because the Department of Justice defines stalking as “ … a course of conduct directed at a specific person that would cause a reasonable person to feel fear. Individuals must have feared for their safety or that of a family member as a result of the course of conduct, or have experienced additional threatening behaviors.”18 Thus, if a client tells an attorney that a partner or expartner is following him or her or has bugged the house, it may very well be true. Quite apart from other implications this may have in a marriage dissolution or other matter, the attorney should then be sensitive to domestic violence and safety issues as well.

The continued prevalence of stalking and other “nonviolent” behavior highlights the multifaceted aspects of domestic violence that practitioners need to be aware of. For instance, recently in Sperle v. Orth, the Minnesota Court of Appeals concluded that “[i]t would be absurd and unreasonable to require victims of domestic abuse to remain in abusive relationships in order to qualify for relief under the Domestic Abuse Act.”19 In Sperle, the parties were romantically involved for three years and continued to communicate via the internet after the relationship ended. Their communications became hostile and, after receiving an email from Orth allegedly stating that he hoped Sperle’s new boyfriend would kill her, “[o]r I will,” Sperle sought an OFP.20 In reversing the district court, the court of appeals concluded that “ … a former relationship may qualify as a significant romantic or sexual relationship under the Domestic Abuse Act” and the district court erred in dismissing Sperle’s petition without making findings as to whether there was such a relationship.21 Under the Domestic Abuse Act, it is unnecessary that parties be living together for domestic abuse to occur and it is insufficient for a lawyer to simply ask a client “did he/she hit you?” and leave it at that, particularly if the answer is “no.”
Screening for Domestic Violence
Dealing with cases involving domestic violence has been problematic because many attorneys and judges do not have ready access to important tools to assist them in dealing with domestic violence issues. For instance, lawyers should be aware of the need to screen for and assess domestic violence allegations made by their client. Perhaps even more critically, lawyers should be screening for domestic violence when their client does not mention it as an issue. Clients may be reluctant to talk about domestic violence with their own attorney for a number of reasons including embarrassment, a reluctance to discuss “private” issues no matter how troubling, or fear that revealing domestic abuse may prompt further abusive behavior by the perpetrator. Also, it not uncommon for a client to fail to mention domestic violence to his or her attorney because the client may not necessarily associate controlling behavior or “pushing and shoving,” for example, with domestic violence or because the client views it as unimportant or irrelevant as a legal issue. Thus, it is important that the attorney be sensitive to potential domestic abuse issues and be ready and able to elicit relevant information from the client.

This is particularly true in “non-family law” situations where an attorney may not consider domestic abuse as a relevant issue. For example, controlling behavior may manifest itself in property or real estate transactions where there are transfers between family members or significant others that may or may not be unusual on the surface; attorneys involved in human resources or similar corporate environments may come across absenteeism or other employment problems absent indicia of physical abuse; criminal law attorneys may be presented with witnesses who are domestic—violence victims; and matters seemingly more remote may have domestic violence connotations—that issue about the fence may not really be about the fence! More generally, settlement negotiations may be colored by underlying domestic-violence issues where a client might or might not be holding out for a particular result, for example.

Therefore, in seeking to screen for domestic violence, practitioners might frame questions in areas such as:

  • instances of physical violence such as pushing, slapping, hitting or hurting;
  • threats to commit physical violence;
  • whether the client is being forced to do something he or she does not want to do;
  • whether anything occurs at home that makes the client feel afraid;
  • whether anything occurs at home that the client fears endangers his or her health in other ways;
  • whether pets, clothing, or other objects of value to the client have been hurt or destroyed;
  • whether there has been harm or threat of harm to children or the client has been deprived of, or threatened to be deprived of, access to children.22

Failure to use such screening techniques may mean the attorney will be unable to effectively represent the domestic-abuse client because the attorney needs this information to understand why the client may be afraid of a specific option; why joint physical custody or children could be a bad idea; why the client is agreeing to give away almost everything in exchange for the children; or why the client may be agreeing to something that is against his or her interest. If the attorney does not know that the client is a domestic-violence victim, the attorney will likely not understand the client’s motives or actions. This is bad enough in itself but it may also expose the attorney to a possible malpractice claim.

One other resource an attorney might use in representing a domestic-violence victim would be a domestic-violence advocate for the client. Advocates can do things for the client that attorneys sometimes cannot and often should not be doing. For instance, an attorney should not be the client’s emotional “rock” whereas advocates can help provide that support; attorneys are not available 24 hours a day, whereas most advocacy programs are; attorneys are usually not going to be good “safety planners,” whereas advocates are. Moreover, attorneys are usually not knowledgeable about the social services systems in the same way as advocates, and using an advocate will help the client obtain other services he or she may need.23

Conclusion
Apart from the immediate risks to attorney and client that would attend undiscovered instances of domestic abuse, appropriate screening for domestic violence is important to ensure that an appropriate forum is chosen for resolution of the dispute at hand. Limited financial resources, crowded dockets, or simply the belief that the court system is an inappropriate venue for resolving family law disputes have resulted in pressures to move family law (and some other civil) matters into various forms of alternative dispute resolution including Early Neutral Evaluation (ENE). While courts may not compel domestic-abuse victims to engage in mediation or other facilitative forms of alternative dispute resolution, mechanisms such as mediation may be appropriate, depending on the context in which the domestic violence occurs. However, regardless of the context, it is necessary to screen for domestic violence in every case.24

Because of the continued prevalence of domestic violence, the Domestic Abuse Act remains as vital in 2009 as it was when it was enacted 30 years ago. In light of the serious effects of domestic violence, practitioners need to be vigilant in screening for domestic-violence issues and using all the resources available to them in order to fully understand and effectively represent their clients’ interests.

Notes
1 Minn. Stat. §518B.01-23 (2009). The Domestic Abuse Act became effective on May 25, 1979. Minn. Laws 214 (1979).
2 Cathy E. Gorlin & Marshall H. Tanick, “New Domestic Abuse Act Implemented in Hennepin County,” 49 Hennepin Lawyer 2 (Nov./Dec. 1979), p. 8.
3 Id., (noting that Minnesota’s act was similar to law enacted in approximately 30 other states).
4 Abby Simons, “Protection Orders are Imperfect Answer,” Mpls. Star Tribune (September 11, 2009), at B1, B7.
5 American Bar Association Commission on Domestic Violence, “Tools for Attorneys to Screen for Domestic Violence,” http://www.abanet.org/domviol/screeningtoolcdv.pdf (last visited August 31, 2009).
6 See, e.g., Theresa Capistrant and Rebecca Wong, “Orders for Protection: When the Shield Becomes a Sword”, 65 Bench & Bar of Minnesota 3 (March 2008), p. 27.
7 American Bar Association Commission on Domestic Violence, supra note 5.
8 Comment, Johnna Rizza, “Beyond Duluth: A Broad Spectrum of Treatment for a Broad Spectrum of Domestic Violence,” 70 Mont. L. Rev. 125, 127 (2009).
9 Id.
10 Federal Bureau of Investigation, Crime in the United States, 2004.
11 See, e.g., State v. Errington, 310 N.W. 2d 681 (Minn. App.1981).
12 Baker v. Baker II, 494 N.W.2d 282 (Minn. 1992).
13 Gorlin and Tanick, supra note 2, at 27.
14 See Thomas Tuft and Linda Jarosch, “Defining Minnesota Statute §518B: An Overview of Caselaw Interpreting the Statute,” 16 Family Law Forum (Fall 2007), p. 60.
15 Minnesota Judicial Branch, “Performance Measures: Key Results and Measures” (January 2009), http://www.mncourts.gov/Documents/0/Public/Court_Information_Office/Results_Summary_Posting(small).pdf (last visited September 2, 2009).
16 Simons, supra note 4.
17 U.S. Dept. of Justice, Bureau of Justice Statistics, http://www.ojp.usdoj.gov/bjs/abstract/svus.htm (last visited August 31, 2009).
18 Id.
19 Sperle v. Orth, 763 N.W. 2d 670, 674 (Minn. App. 2009).
20 Id. at 672.
21 Id.
22 See, American Bar Association Commission on Domestic Violence, supra note 5.
23 Excellent training is available for attorneys through a number of agencies, including, for example, the Battered Women’s Legal Advocacy Project.
24 Ellen Abbott, “Should I or Shouldn’t I: An ADR Provider’s View of Referring Victims of Domestic Abuse to Mediation, Collaborative Law and Early Neutral Evaluation,” 16 Family Law Forum (Fall 2007), at 70.



STEPHEN ARNOTT
 is assistant professor of legal studies in the College of Liberal Arts at Hamline University and of counsel to the St. Paul law firm of Clausen & Hassan, LLC. Prof. Arnott gratefully acknowledges the contributions of the Domestic Abuse Committee of the MSBA Family Law Section in preparing this article.

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