Opinion The stakes in domestic abuse cases are dire and often dangerous

When victims go to court without a lawyer, the odds are stacked heavily against them.

(Fatinha Ramos for The Washington Post)

A subtle shift in legal lingo seeped its way into some courthouses in recent years, throwing a veil of obfuscation over a toxic threat to justice.

Litigants who cannot afford a lawyer in civil procedures, including victims of domestic violence desperate for restraining orders that might protect them from abusive partners, are now often called “self-represented.” That’s a misnomer. In fact, they are unrepresented — they have no legal right to court-appointed counsel — and the consequences may be deadly.

Alone Before the Law

So it was for Adrianne Oyola, the teenage mother of a 7-month-old son named Aaden, who filed a “Relief from Abuse” affidavit in Connecticut Superior Court a day after her high school graduation, in 2015, seeking temporary protection from the boy’s abusive father. “I fear for my and my child’s safety, he could hurt my child, he has told me,” she wrote. “He has told me he could make my son disapear [sic] anytime of the day. … He told me he would put me in the ground and put something on me to make me [disintegrate] faster.”

The temporary restraining order was granted, without a hearing, requiring the infant’s father to keep his distance for just two weeks, as is customary in Connecticut and elsewhere. But when Ms. Oyola returned to court seeking to extend it — this time with a courtroom hearing — a judge gave short shrift to her sworn statement. She never elaborated on the verbal threats from baby Aaden’s father that gave rise to her fears — not their frequency, nor their context, nor the terms and tone in which they were delivered — as any competent lawyer would have prompted her to do.

Nor did the judge, Barry C. Pinkus, ask her or even Aaden’s father, Tony Moreno, about those alleged threats. Instead, he got sidetracked trying to determine if Mr. Moreno had violated the two-week restraining order. And in the absence of a court-appointed lawyer, Mr. Moreno was not subject to cross-examination.

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The judge then refused to extend the restraining order, saying he saw no risk of “imminent harm,” and lectured Ms. Oyola and Mr. Moreno. “You need to grow up and deal with each other as adults,” he said.

A week later, Mr. Moreno, having regained access to baby Aaden, threw him from a bridge 90 feet above the Connecticut River. The child’s body was recovered miles downstream. Mr. Moreno, later convicted of murder, is serving a 70-year prison sentence.

In the outcry that followed, some legal commentators defended the judge, saying he could not have foreseen so ghastly a crime based on the evidence before him. That missed the point.

Put simply, the court failed to do precisely what courts are meant to do: fully determine and weigh the facts. In the absence of a court-appointed lawyer, Ms. Oyola had no advocate, no experience and no acumen in highlighting relevant evidence. The result was a miscarriage of justice.

The tragedy of Ms. Oyola’s case is unspeakable, but the obstacle to justice she faced is routine. The Supreme Court, even as it acknowledged that it may be wise policy for states to grant a right to counsel in some civil proceedings, has declined to mandate it. With the exception of New York, which ensures court-appointed counsel for low-income victims as well as abusers in civil protection order cases, no state has established a categorical right to legal representation in domestic violence litigation.

Given the staggering scope of domestic violence, that leaves millions of victims on their own when they turn to courts for protection. More than 10 million Americans are physically abused by a domestic partner each year, and between a third and a fifth of women are thought to have experienced physical abuse from a partner in their lifetimes. On a typical day, more than 20,000 calls are placed to domestic violence hotlines across the country. According to a 2009 Justice Department study, domestic violence calls comprise the single largest category of calls — 15 to 50 percent — made to police.

Civil protection orders are not foolproof, but they are often effective. A 2011 study of more than 200 women who were granted restraining orders in Kentucky found that for half of them, the violence stopped after they secured the order; the other half reported that the abuse had fallen off significantly. At a rough estimate — no reliable national data are compiled — well over 1 million Americans, mostly women, seek restraining orders annually. In most cases, those victims cannot afford to hire a lawyer. That produces severely skewed outcomes. In a survey from 1999 to 2000, just 36 of 205 women sampled in Baltimore had a lawyer when they sought a civil protection order. Of those 36 women, 30 got the protection they sought, while just a third of the other 169 women, unrepresented by counsel, were successful.

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That skew surprises no one with courtroom experience in domestic violence cases. Lawyers and advocates say that victims without counsel often struggle to describe their abuse, even or especially when it is severe, in crisp, linear, chronological form — all the more so when they are standing next to their abusers. Judges, sometimes impatient or exasperated with unfocused or rambling testimony, can be reluctant to wade into the particulars.

In other words, some judges are loath to do a job that should properly be done by a lawyer in court.

When courts refuse to grant restraining orders in the face of substantial evidence of abuse, the message to victims, usually women, is unambiguous: No one will protect you. For abusers, the message is equally pernicious: No one will stop you.

Mindful of that, lawmakers in some states have debated extending to civil litigants in domestic violence cases the same right to court-appointed counsel guaranteed to criminal defendants who cannot afford to hire one. In some places, the pushback has focused on cost.

Yet in Connecticut, where the question has gained traction owing partly to Ms. Oyola’s case, a state legislative task force found that the costs of denying legal counsel to victims of domestic violence would outweigh the expense of providing them with legal help. Those costs, cited by similar analyses in other states, arise from medical and mental health care, foster care when the state must remove children from violence at home, and employers hit by absenteeism. A measure passed by the Connecticut legislature this month, now awaiting the governor’s signature, would provide lawyers to thousands of penniless domestic violence litigants in the state’s busiest courthouses at modest expense — just $1.2 million in a two-year budget of $46 billion.

That bill’s chief sponsor, state Sen. Mae Flexer (D), has spent years trying to improve the odds for abuse victims seeking protection, motivated largely by the Oyola case and the death of baby Aaden. “There’s a lack of understanding about how intimidating it can be to stand in a courtroom, period, let alone next to the person you’re fearful of,” she told us.

For victims in that position, the odds for protection, and for meaningful justice, would be powerfully improved by court-appointed lawyers — and by states that have the foresight to provide them.

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