Physically Invisible: Understanding Coercive Control as a Form of Domestic Violence — Part 4
I have spent the past few months learning and writing about the current state of domestic violence law across the United States. While I read all the state statutes that recognize coercive control, I know as well as anyone in the legal field that the law as it is currently written does not show the depth of what the law once was and the knowledge that was uncovered before it came to be. The legislature generally does not include in the language of a statute the advocacy that goes into granting statutory protections or go into much detail on why the law or amendment to the law was proposed in the first place. Therefore, to better understand the foundation of domestic violence law and what has now been recognized as coercive control, I delved into the years’ worth of social science research and law review articles. During this process, I started thinking about how drastically the law can change and how different that change occurs between states. That said, I do not believe the domestic violence statutes as they are currently written will stay the same forever — at least not all of them.
This is my final post in this blog series, and my focus will be on the future of domestic violence law and the effect that coercive control as a form of domestic violence will have on the legal field going forward.
Ethical Duties of Attorneys
Most of the time, when the law changes, there is little to no impact on attorneys’ ethical duties to their clients. However, expanding the definition of domestic violence to include coercive control may raise questions regarding what information shared by a client to their attorney is privileged and confidential information.
An attorney’s ethical duties are set out in the Rules of Professional Conduct (RPCs) published by the American Bar Association. One of the most widely known ethical duties is maintaining attorney-client privilege. According to the American Bar Association (ABA) Rule 1.6: Confidentiality of Information:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
The phrase “death or substantial bodily harm” on its face appears to implicate physical harm. However, in a Canadian law school journal article, the author suggests that the future bodily harm exception should be met through psychological violence caused by coercive control. Thus, an attorney who reasonably believes his or her client is engaging in coercive control behaviors could violate attorney-client privilege in order to prevent future violence to the victim. While the ethical rules set out by the Canadian Bar Association and the American Bar Association do in fact differ, I believe it is worth considering the impact of this logic in the American legal system.
An attorney’s role is to advocate for her client by educating the court on the facts of the case and the applicable law. Doing so often requires counseling the client on the appropriate behavior and the legal consequences of their actions — such counseling is privileged information.
Rule 1.6 as it is written (and explained in more detail in the comments) allows an attorney to share information obtained in the course of representing a client in a domestic violence matter if, for example, the client says that he plans to go home and violently beat his wife or that he plans to run her over with his car in the driveway. However, if we maintain that coercive control is a form of violence with substantially harmful impacts on the victim, then it would follow that an attorney would be able to exercise Rule 1.6 (a)(b)(1) if her client told her that he threatens his wife with destruction of her property if she does not comply with his demands, constantly humiliates, harasses, and surveils her when she leaves the house, drives recklessly when his wife and their children are in the vehicle, does not allow his wife access to money or transportation, and/or insists on engaging in abusive litigation to exhaust her financial resources and coerce her into withdrawing her DVPO petition.
Without changing the language of the rule, this potential extension of 1.6(a)(b)(1) to coercive control relies on whether psychological harm is a form of bodily harm. While emerging science suggests they are intimately related, the law often distinguishes them as different types of harm with differing legal effects.
Even though expanding 1.6(a)(b)(1) would only permit (not require) attorneys to violate attorney-client privilege if their client is engaging in coercive control, there are several issues that could arise. First, it allows attorneys to be mini judges on an area of law that is still ambiguous to many in the field. While a threat or disclosure of physical violence is readily understood by most people, it may be more challenging for an attorney to recognize coercive control and then make the decision to violate privilege to protect the victim. That said, it would place an added burden on attorneys to make the right call with their career on the line.
I want to encourage attorneys to think about how the promulgation of coercive control laws may impact their ethical obligations and whether it would be logical to extend 1.6(a)(b)(1) to coercive control behaviors.
Role of Judges
In my last post, I discussed how judges may witness coercive control behaviors in the courtroom if the abuser is engaging in abusive litigation. However, judges (or commissioners) in domestic violence hearings are not in the position to grant protections that the petitioner did not ask for. In other words, if the petitioner did not check the box on the petition that asks the judge to restrict abusive litigation, then the judge cannot order it.
Should this be the case? Should the judge be able to restrict abusive litigation without the petitioner asking for it? My first instinct is to say that allowing the judge to act freely in a domestic violence case may violate the respondent’s due process rights. However, I think it could work with some limitations. First, this power should be limited to restricting abusive litigation and cannot alter or expand on other protections in the petition. Because abusive litigation is directly related to the proceedings in front of the judge and does not require much speculation or a decision based on evidence not present in the materials, this may get around the due process issue. Second, the judge should be permitted to act outside of the requests set out in the petition and restrict abusive litigation only if the petitioner is pro se (not represented by an attorney). When a petitioner is represented by an attorney, they likely have assistance in filling out their petition and can make an informed decision on what protections they will petition for. Additionally, the fact that a petitioner is represented by counsel may in and of itself prevent the respondent from engaging in abusive litigation tactics. However, a pro se petitioner may not know what “abusive litigation” means and does not have the benefit of an attorney advising her through the process.
Final Call to Action
As we have seen with the recent reproductive rights litigation, progress in the law does not always occur in a straight line. Therefore, while the recognition of coercive control as a form of domestic violence appears to be gaining traction in the law, it is crucial to build upon the knowledge that brought us here and never become complacent with each victory.
Domestic violence law saves countless lives and brings hope to victims who may have felt trapped and alone. It provides an avenue for escape from violence that feels tangible and increasingly accessible. At this point, what is most crucial is that if/when the law changes, it changes in such a way that the victim, no matter what state she lives in, only gains and does not lose protections, guidance, and accessibility to the law.
