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Law360 (October 18, 2020, 10:07 PM EDT )
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| Ashley Carter |
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| Richard Kelley |
The National Domestic Violence Hotline reported that contact volume increased significantly in the first few weeks of the pandemic.[2] A recent study published in the medical journal Radiology found a higher degree of incidence and severity of physical intimate partner violence during the COVID-19 pandemic compared with the prior three years.[3] In Washington, D.C., domestic violence crisis intervention agency DC SAFE received 3,148 calls in August, compare to an average of 1,895 inbound calls per month in 2019.
In addition to increased rates of domestic violence, the COVID-19 pandemic has also impacted the services available to survivors. For example, some domestic violence shelters have had to reduce capacity to comply with social distancing guidelines or close entirely for periods of time to become properly equipped for COVID-19.[4] As state agencies face enormous budget shortfalls, domestic violence service providers may soon find themselves facing reductions in their state-funded grants.[5]
Survivors often turn to the courts for help: All 50 U.S. states and Washington, D.C., permit victims of domestic violence to file for emergency protective orders through their local courts.[6] However, COVID-19 has caused many courts throughout the country to close indefinitely, limiting access to the legal system.
Many courts have been forced to rapidly adapt their filing procedures to provide new methods of access to the legal system. While COVID-19 has created additional hurdles for domestic violence survivors — and these should not be ignored — as courts begin to move back to the new norm, it would be beneficial to consider which adaptations forced by COVID-19 should stay.
COVID-19 Pandemic a Catalyst for Adopting Trauma-Sensitive Processes
The coronavirus pandemic has had a tremendous impact on court systems in the United States, forcing courts to close their physical doors or postpone hearings to prevent the spread of the virus.[7] Courts have been forced to design new procedures for filing and processing cases remotely and to adopt technology that allows for virtual hearings.
As a result of these new procedures, court systems — intentionally or unintentionally — have adopted more trauma-sensitive processes. Using the Superior Court of the District of Columbia as a case study reveals some of the ways that courts have adapted to provide trauma-sensitive options for survivors of domestic violence.
The Office for Victims of Crime, a part of the Office of Justice Programs at the U.S. Department of Justice, identifies a trauma-informed environment as one that
realizes the widespread impact of trauma on victims and understands potential paths for healing; recognizes the signs and symptoms of trauma in staff, clients, and others involved with the system; and responds by integrating knowledge about trauma into policies, procedures, practices, and settings, [including prioritizing] the victim's safety and security and on safeguarding against policies and practices that may inadvertently traumatize victims.[8]
Key concepts of trauma-informed care focus on (1) safety, (2) trustworthiness, (3) choice, (4) collaboration and (5) empowerment.[9] As applied to the legal system, this article will focus on procedures that increase a victim's feelings of safety and security, while preventing situations that may retraumatize the victim.
Trauma-Sensitive Procedures During COVID-19
The Filing Process and Initial Temporary Protection Order Hearing
Prior to the pandemic, individuals would either have to visit the Domestic Violence Intake Center at the D.C. Superior Court or go to the court's satellite office in southeast Washington, D.C., to file for a civil protection order, or CPO, and to have an emergency, ex parte hearing. However, the current standing order of the D.C. Superior Court continues to provide an option to file one's petition for a civil protection order online and to participate in the ex parte hearing over the phone.[10]
Court is often traumatic for survivors of domestic violence — they feel unsafe traveling around, don't inherently trust the court system, and may even feel confused by the process at court. Survivors often miss work due to the abuse, and may have difficulty taking off more time to come to the courthouse to file. Survivors may have visible and painful injuries, an additional barrier to traveling to a courthouse.
However, victims of domestic violence now have the option to call for assistance to file a CPO online or the choice to complete the online form on their own and at their own pace. Survivors can fill out the form and file it from wherever they feel safe, at any time of day. The hearing for a temporary protection order now occurs over the phone, further avoiding needless potential trauma at the courthouse, and avoids further disruptions for the victim to her or his safety.
Phone-Based Negotiations
Similarly, negotiation processes for CPOs have become more trauma-sensitive. Prior to the pandemic, same-day negotiations would occur with an attorney negotiator prior to a trial occurring on the same day. This meant that the victim was often obligated to make various rapid choices about their safety and what they need from the process in a compressed period of time.
This can impact a victim's sense of safety (both future safety and the reality that the victim may be seeing their abuser for the first time since a traumatic incident), choice (victims can feel pressured into making quick choices about whether to give up part of what they think is necessary for their safety versus taking a risk at trial), and empowerment (victims can feel confused by the process or their agency in the process, particularly when pro se).
However, since the pandemic, negotiations now occur over the phone with the attorney negotiator reaching out to the victim to see if they want to participate in negotiation and, if so, what they would request in a consent CPO. The negotiator then reaches out to the opposing party and sees if the opposing party will agree.
There may be some back-and-forth with the negotiator acting as the intermediary about specific terms, but, ultimately, the victim has agency to decide whether to agree to anything at all. There is no trial the same day, relieving the pressure that can feel disempowering to victims in the process.
Virtual Evidentiary Hearings
Since COVID-19 stay-at-home orders were issued in Washington, D.C., all proceedings in the Domestic Violence Division have been virtual, meaning any evidentiary hearings are done through a virtual courtroom.[11] While virtual courtrooms have their challenge, they also have their benefits, at least from a trauma-informed perspective.
Paramount is the fact that virtual hearings increase feelings of physical and emotional safety for victims because they do not have to be in the same room with their abuser. Removing this stressor can drastically change how the victim feels about the court process. In addition, the victim can participate in the hearing from a safe place where they feel comfortable.
Takeaways for Attorneys Representing Victims of Domestic Violence
While this article focuses on the D.C. Superior Court's response to COVID-19, many courts are engaging in similar changes. For advocates, whether working at legal aid organizations or taking protection order cases pro bono, it is important to watch how the court is navigating the current pandemic and monitor the impact of court changes on the trauma experience for your clients.
Ask for trauma-sensitive accommodations.
As attorneys, part of our job is to make sure our clients have the right environment to share their story. COVID-19 has forced many courts to modernize their technology and be creative in how they are approaching court experiences. If there are trauma-sensitive ways that support your client's ability to advocate for their needs, ask for them. Even when we move back to non-COVID-19 procedures, we now know what is possible and should be asking courts to use all of their resources to create trauma-sensitive court experiences.
Explain the changes in your jurisdiction and keep your client updated.
There are rapidly changing court procedures across the country due to the COVID-19 pandemic. One way that we as attorneys can play important roles for our clients in this time is to create opportunities for trust, collaboration and empowerment by keeping our clients informed about the changes and taking the time to explain what they mean for their experience with the court. Knowing what is happening in the process can be an important part of feeling empowered and safe for a victim of domestic violence.
Take an active role in advocating for trauma-informed court procedures during and after the pandemic.
We are in an unprecedented time of technological innovation in courts due to COVID-19. Unfortunately, courts do not always make choices that prioritize trauma sensitivity. During this time, if there are activities that increase trauma for your client, make the court system aware of your concerns. Similarly, if there is a court procedure that has been created to address COVID-19, but is generally more trauma-sensitive than prior court proceedings, attorneys should be working with courts to preserve these trauma-sensitive access points.
Ashley Carter is an Equal Justice Works fellow at the DC Volunteer Lawyers Project, where she manages its Protection Order Clinic at the D.C. Superior Court.
Richard Kelley is managing attorney of the immigration and child advocacy practices at the DC Volunteer Lawyers Project.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Marissa J. Lang, The Washington Post, "Domestic violence will increase during coronavirus quarantines and stay-at-home orders, experts warn," https://www.washingtonpost.com/local/domestic-violence-will-increase-during-coronavirus-quarantines-and-stay-at-home-orders-experts-warn/2020/03/26/04e63d6a-6d37-11ea-b148-e4ce3fbd85b5_story.html.
[2] National Domestic Violence Hotline, COVID-19 Special Report, https://www.thehotline.org/wp-content/uploads/sites/3/2020/06/2005-TheHotline-COVID19-report_final.pdf.
[3] Gosangi et. al., Exacerbation of Physical Intimate Partner Violence during COVID-19 Lockdown. Radiology https://doi.org/10.1148/radiol.2020202866.
[4] Adiel Kaplan and Wilson Wong, NBC News, "It's hard to flee from your domestic abuser during a coronavirus lockdown," https://www.nbcnews.com/health/health-care/it-s-hard-flee-your-domestic-abuser-during-coronavirus-lockdown-n1205641.
[5] NPR, "States Are Broke And Many Are Eyeing Massive Cuts. Here's How Yours Is Doing," https://www.npr.org/2020/08/03/893190275/states-are-broke-and-many-are-eyeing-massive-cuts-heres-how-yours-is-doing.
[6] American Bar Association, Domestic Violence Civil Protection Orders (CPOs), https://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/Charts/migrated_charts/2016%20CPO%20Availability%20Chart.pdf.
[7] Sarah Jarvis, Law360, "Coronavirus: The Latest Court Closings and Restrictions," https://www.law360.com/articles/1252836/coronavirus-the-latest-court-closures-and-restrictions.
[8] Office of Justice Programs, Office for Victims of Crime, Training and Technical Assistance Center, https://www.ovcttac.gov/taskforceguide/eguide/4-supporting-victims/41-using-a-trauma-informed-approach/.
[9] Id.
[10] Order of Chief Judge Robert Morin, D.C. Superior Court, Aug. 13, 2020, https://www.dccourts.gov/sites/default/files/matters-docs/General%20Order%20pdf/Amended-Order-8-13-20-FINAL.pdf.
[11] Id.
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