A Judge’s Guide

Medical and nursing students then accompany the law students to court in order to learn the
realities of accessing the legal system; the better to advise their future patients. 30
In addition to screening for physical harm, advocates, lawyers and other interveners should
routinely ask children about any psychological abuse, 31 a common tactic of batterers to destroy
the victim’s self-esteem. The batterer may have told the victim that no one will believe her, 32
that her family will be harmed if she discloses the abuse, that no one will want to help her and
that the abuse is all her fault. 33 Interveners must tell their battered child and adult clients, “It’s
not your fault; you are not to blame for the abuse,” and “You don’t deserve to be abused.” 34
A lawyer’s silence constitutes collusion with the batterer and likely malpractice. 35 The
Model Rules of Professional Conduct specify that: “Competent handling of a particular matter
includes inquiry into and analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent practitioners.” 36 Given the
growing body of legal, psychological, and popular literature 37 about the adverse impact of
domestic violence on children, there can be little doubt but that screening is a minimal first step.
Regardless of the legal problem with which a client presents, the attorney must routinely screen
all clients for abuse.
Interveners must learn to ask for the assistance of child abuse and domestic violence victim
advocates, as the case complexity means that they are often not amenable to simple solutions.
For example, the battered mother may also be abusing her children, but is more likely to stop
30
The author is the co-founder of the Harvard Law School Battered Women’s Advocacy Project which took part in
this effort, and participated as a trainer at Boston City Hospital to expand the program in 1992.
31
Joan S. Meier, Notes from the Underground: Integrating Psychological and Legal Perspectives on Domestic
Violence in Theory and Practice, 21 HOFSTRA L. REV. 1295 (1993); See also Patricia Evans, THE VERBALLY
ABUSIVE RELATIONSHIP, How to Recognize It and How To Respond (“All Domestic Violence Begins With
Verbal Abuse”) (1992).
32
While not discounting the reality of male victims (both gay and heterosexual), the vast majority of domestic
violence victims are female and the perpetrators are male. Russel Dobash, The Myth of Sexual Symmetry in Marital
Violence, 39 SOC. PROBS. 71, 74-75 (1992); Caroline W. Harlow, U.S. DEP’T OF JUST., FEMALE VICTIMS
OF VIOLENT CRIME 1 (1991); Peter Finn and Sarah Colson, U.S. DEP’T. OF JUST., CIVIL PROTECTION
ORDERS: LEGISLATION, CURRENT COURT PRACTICE, AND ENFORCEMENT 4 (1990); Patsy A. Klaus
& Michael R. Rand, FAMILY VIOLENCE: BUREAU OF JUSTICE STATISTICS SPECIAL REPORT (1984), as
cited in Roberta Valente, supra note 6.
33
Richard Ducote, Guardians Ad Litem in Private Custody Litigation: The Case for Abolition,
3 Loyola Journal of Public Interest Law 106 (Spring 2002) (noting the many instances in which verbal as well as
physical abuse are minimized and ignored by the courts); see also, Barbara Hart, Why She Stays, When She Leaves,
STOPPING THE VIOLENCE (1990).
34
See, Kathleen Waits, Battered Women and Family Lawyers: The Need for an Identification Protocol, 58 ALB.
L. REV. 1027, 1042-43 (1995).
35
The Model Rules of Professional Conduct mandate that attorneys “provide competent representation to a client”
which “requires the legal knowledge, skills, thoroughness and preparation necessary for the representation.” Rule
1.1.
36
Model Rules of Professional Conduct, Rule 1.1 cmt. 5.
37
See e.g. supra note 3; Ann Jones, NEXT TIME SHE’LL BE DEAD (1992); George Lardner, THE STALKING
OF KRISTEN (1993).
235