Impossible Choices: Balancing Safety and Security in Domestic Violence Representation
Camille Carey and Robert A. Solomon, Impossible Choices: Balancing Safety and Security in Domestic Violence Representation, 21 Clinical L. Rev. 201 (2014).
Domestic violence victims often face the impossible choice between physical safety and financial security. State intervention can offer some protection to victims, but enlisting the criminal justice system through reporting domestic violence or restraining order violations can have drastic financial consequences. Involving the state is likely to lead to sanctions for the abuser that would ultimately deprive the victim of child support, alimony, and other financial support, which may be the totality of the victim’s financial resources. To avoid this result, many victims refuse to enforce court orders intended to maximize their safety. This article examines the context in which victims must “choose” between physical safety and financial security and the lawyer’s difficult position when a client prioritizes financial stability. Using a compelling case study that exemplifies this impossible choice, the article examines the role of economic dependence in victim decision-making; reasons why victims avoid protections offered by the criminal justice system; issues of capacity, competence, and the Model Rules of Professional Conduct in representing victims; the different models of client-centered lawyering and cause lawyering; the question of whether private rights become public in domestic violence cases; and recent social science work on the ability to predict future domestic violence based on current behavior. The authors view this through the lens of law school clinical programs, and the experiences of students who work on the cases and what limitations, if any, there are to representation when the client trades safety for economic stability.