Domestic Violence Survivors Face Challenges Using Law to Prevent Abuse of Legal System

King County Courthouse (Flickr: Evan Didier)

By Paul Kiefer

When a Washington state law intended to prevent abusive partners from using courts to harass or manipulate domestic violence survivors went into effect in early January, Isabelle Latour was one of the first people to try to put the new law to work. In doing so, she illustrated how difficult it may be for the law to efficiently protect survivors from a tactic known as “abusive litigation.”

Over four years, multiple King County judges ruled on dozens of occasions that Latour’s ex-husband, a Seattle attorney, had used frivolous lawsuits, unfounded complaints about Latour and her attorney, a questionable bankruptcy claim and dozens of other motions filed across multiple courts to drag out their divorce and maintain a form of control over Latour. The endless stream of litigation forced Latour to spend countless hours and thousands of dollars battling her ex’s efforts to re-litigate their divorce.

“After surviving a lot of abuse, I got pulled onto Zoom call after Zoom call—it became like a second job,” she said. “It was a heavy cloud hanging over me. I wanted to move on with my life, but I had to keep revisiting my trauma.”

When state Sen. Christine Rolfes (D-23, Bainbridge Island) began drafting legislation targeting abusive litigation for the state legislature’s 2019-2020 session, Latour and other survivors provided input. A version of the legislation that passed in 2020 empowered judges to limit an abuser’s ability to file or continue litigation against their victim; it also required the abuser to pay the court and attorneys’ fees. A court can only impose those restrictions on someone who a court has previously found to have committed domestic violence, and the restrictions expire after four to six years.

But the law’s impact depends on survivors, who need to petition a judge to consider whether to impose restrictions on their abuser’s rights to file litigation.

Because of the fragmented nature of Washington’s superior court system, it’s difficult to know how many survivors have tried to use the law so far. Of the half-dozen attorneys who spoke with PubliCola, only Latour’s attorney—Karma Zaike—has represented a client who successfully petitioned a court to stop their abuser from filing new litigation.

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By the time the law went into effect on January 1, 2021, Latour believed that her motion to stop her ex-husband’s litigation would be an open-and-shut case. Zaike was so confident that a judge would approve Latour’s request that she tried to schedule a hearing on January 4.

Instead, Latour struggled to find a judge to hear her case; then, once she landed before King County Superior Court Judge Johana Bender, she endured four more hearings over Zoom. According to Latour and Zaike, the new hearings gave Latour’s ex additional opportunities to denounce his ex-wife and her attorney with allegations of dishonesty, and to argue that his lengthy history as a litigant was justified.

Latour’s ex-husband did not respond when PubliCola attempted to contact him.

Because restricting someone’s right to file litigation is a serious imposition by a court, judges like Bender often allow an accused abuser to argue their case at length before deciding whether to issue an anti-abusive litigation order. “A lot of abusers are very persistent—they won’t give up easily,” said Antoinette Bonsignore, an attorney who volunteers with Seattle-based women’s rights group Legal Voice who has advocated for protections against abusive litigation.

On May 7, Judge Bender finally issued an order prohibiting Latour’s ex-husband from filing new litigation against Latour without court approval and requiring him to cover Latour’s legal expenses—although she doesn’t expect that he will pay.

Because Judge Bender still has jurisdiction in the case, she declined to speak with PubliCola.

Latour’s months-long struggle to stop her ex-husband from dragging her into court, said Zaike, is a reminder that survivors will face an uphill battle to take advantage of the new law. “It isn’t easy to navigate this process [even] with an attorney,” said Zaike. “None of this is simple, and it takes a lot of time and familiarity with the court system.”

For Latour, who described years of violence and emotional abuse by her ex-husband, the barriers to challenging her ex-husband’s unending stream of legal challenges were significant. Her support network was small: She doesn’t have close family to help her with child care, so she turned to a small group of friends for help during the multi-year struggle with her ex-husband. But Latour held onto her house during the divorce, and though the stress of her case led her to switch jobs, she was able to afford an attorney to fight on her behalf. In total, Latour said she’s incurred roughly $100,000 in legal fees fighting her ex.

Many survivors of intimate partner violence have fewer resources to rely on. “Economic abuse—not letting someone work or taking away their money—is a huge component of domestic violence cycles,” said Neetika Gupta, an attorney for LifeWire, a Bellevue-based organization that provides support to survivors of abuse. “For other survivors, the constant barrage of litigation can make someone lose their job or take time off work, so they lose income.” Without an income or savings, said Gupta, survivors often face their abusers in court without the help of a lawyer—the relatively few attorneys who represent survivors pro bono can’t manage the sheer volume of survivors in need of help.

Latour also noted that pursuing an anti-abusive litigation order against her ex-husband without an attorney might have come at a serious cost. “If I had done this alone, I would have had to quit my job, and I would have lost my house,” she said.

Meanwhile, said Melissa O’Sullivan, another attorney for LifeWire, abusers are far more likely than their victims to be able to afford legal representation—though abusers come from all walks of life, she said, many made more money than their partners. “We see very few abusers who represent themselves,” she said. “But even those who do have quite the ability to drag out their cases, harm survivors and drain survivors’ resources and time.” Though Latour’s ex represented himself, his legal background allowed him to navigate the court system more effectively than most abusers who represent themselves, said Zaike.

In the courtroom, Gupta added, many abusers are in a better position to argue their case than their victims. “A survivor who has experienced years of trauma—and who is often a full-time parent—sometimes can’t present themselves very eloquently. They might not speak English well, they might be nervous, they might be scared or jittery,” she said. “And abusers are often more savvy, more charismatic, and better orators, because they are used to putting on a show.” As a result, people petitioning for an anti-abusive litigation order may struggle to hold their own before a judge.

Advocates say they support the new law, but several said the legislature needs to act to give the law more impact. “The problem is that this puts a lot of weight on a survivor, even if they have an attorney,” said Zaike. “And in a lot of cases, survivors, judges and advocates might not even know it’s an option.”

And though few people have used the law successfully since January, Zaike says she’s already seen someone with a history of domestic violence request an anti-abusive litigation order against his victim—one of her clients. “You can be sure that abusers will try to take advantage of any law created to protect survivors,” she said. “It happens every time. Judges need to be educated so they can spot it.”

In the meantime, Latour’s case may not be closed. “I’m hoping the last order will give us a sense of peace to a certain extent,” she said, “but he can still appeal it, and he will.”