#RethinkCredibilty in Family Court

Anyone who has gone through a divorce or has faced a court deciding how their kids' time will be split knows the process is uncertain, exhausting and vulnerable. Survivors of domestic and sexual violence experience an additional burden that often goes undiscussed: navigating the implicit bias of judges and jurists. Survivor testimony is one of the most important aspects of a court proceeding and domestic violence survivors are judged by more than the facts they present; they may also be judged by how they look, behave, and express emotion. 

Judges and jurists are human. They arrive in a courtroom with preconceived notions about how survivors should present, which act as implicit biases that influence whether or not they  deem a survivor credible, impacting the outcome of the case. In Family Court, where judges have considerable autonomy in decision making and where rulings are rarely challenged in a higher court, this is a particularly concerning phenomenon that demands examination. 

Philadelphia Legal Assistance (PLA) is inspired to join New York Legal Assistance Group (NYLAG)’s recent campaign to change how our society and courts think about credibility; #RethinkingCredibility focuses on how racism, poverty, and trauma impact a survivor’s presentation in the courtroom. 

We are joining NYLAG in their campaign to rethink credibility because our advocates witness how poverty influences the choices a survivor makes. PLA’s Family Law Unit partners with survivors of family and sexual violence who are seeking safety and independence. We know that it may take years before a survivor is able to permanently leave their abusive environment due to fear of further harm from the abuser and from the system. Fears of loss of custody of children, financial and housing instability, deportation or detention for immigrants without status, and the cyclical nature of interpersonal family violence all impact survivors and their choices. When courts are unable to understand these factors and the context in which a survivor is operating, the choices a survivor makes may raise questions around survivor credibility. 

#RethinkingCredibility demands we understand how trauma, context and implicit bias impact credibility determinations. Trauma has a huge impact on how survivors present in the courtroom. Trauma is the response to a deeply distressing or disturbing event that overwhelms an individual's ability to cope, causes feelings of helplessness, diminishes their sense of self and their ability to feel the full range of emotions and experiences. Trauma is often associated with individual acts of violence, but communities living under systemic oppression may also experience collective trauma. At PLA, we recognize the role that trauma plays in the lives of our clients and acknowledge that traditional service delivery models in legal services may trigger trauma related reactions.We endeavor to minimize re-traumatization, working with community partners and fellow legal services providers to share survivors’ stories instead of asking the survivor to repeatedly recount the abuse. We practice engaged listening, responding appropriately to disclosures of abuse, recognizing the difficulty of making the disclosure, and allowing clients to express their feelings and fears. We manage our clients’ expectations about the court process, and explain how proceedings will take place so a survivor is prepared. We strive to show empathy and not judgment.

The reality is that trauma does not affect all communities equally. Women of color live in poverty at far higher rates than other Americans, and poverty itself compounds domestic violence. For survivors who are people of color, the experience of poverty is compounded with biases surrounding race and culture that also impact credibility determinations.  

Survivors of color may be fearful of seeking relief from the courts or from the police. State violence towards people of color may mirror the violence survivors are experiencing in their own homes. Survivors may be fearful of reaching out to the police, for fear of the abuser being unfairly treated by state actors, sometimes choosing not to contact law enforcement. Despite likely being eligible for protection orders and immigration relief such as a U-Visa, many immigrant survivors forgo seeking out help for fear of deportation and detention. This fear is heightened by current policies of increased scrutiny and apprehension of immigrant communities.

Domestic Violence Awareness Month provides an important opportunity to highlight the issue of survivor credibility. As advocates, we should also work to amplify this conversation throughout the rest of the year and challenge our colleagues to do the same. Anyone who listens to the testimony of a survivor of domestic violence must understand all the factors that may influence credibility and one’s ability to recount abuse. By #RethinkingCredibility, survivors may be believed at a far greater rate -- no matter how or when they report the abuse or seek protections from further harm -- and efforts should be made throughout the legal process to recognize and appropriately respond to the effects of trauma on survivors.