Access for All, Justice for Only a Few

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Commentary Human Rights

Access for All, Justice for Only a Few

Emersyn Burns

As a domestic violence survivor, wealth and gender were consistent barriers to justice throughout my experience with the court system.

My experience is not unlike that of other poor, uneducated victims of domestic violence. I was trapped in an abusive marriage with little resources or ability to leave. So, I stayed. I stayed after the first time I was raped. I stayed after the first time I was punched. I stayed after the first time he told me where he could bury my body, and that no one would find me. I stayed because my ex-husband had the money and resources to gain full custody of my children.

Every day, we see examples of privilege prevailing over justice, from Brock Turner’s jail sentence of six months for violently raping Emily Doe to Colin Warner’s wrongful conviction for the shooting death of a 16-year-old in Brooklyn. It’s clear that wealth, race, and gender play integral roles in obtaining justice in America, and money often is the deciding factor in our court system, even when it comes to domestic violence.

In 2011, my ex-husband hit me for the last time. My daughter witnessed the beating and asked me after, “If I yell at Daddy, will he punch me too?” In that moment, the fear of staying became greater than the fear of leaving. So, we fled the tiny town where we were living at the time and hid in a shelter in another state. We left behind our friends, our family, our home, and all our possessions besides three suitcases. Within days, my ex-husband’s family hired a private detective to try and find my children and me. He also hired a locally renowned attorney and filed for divorce.

The advocates at the shelter helped me file domestic violence charges against my ex-husband, but even the arrest process was colored by his wealth and privilege. Instead of arresting him, the police served him with charging documents and let him go home.

Roe is gone. The chaos is just beginning.

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Those first few weeks in the shelter were some of the most difficult times of my life. I did not have money to hire an attorney, much less feed myself or my children. I lacked the skills or knowledge to build a case for custody. However, I did possess a deep, unyielding determination to protect my children and an unwillingness to ever be a victim of domestic violence again.

Every night after I put my children to bed, I researched how to build a case for custody, what evidence I needed, and what the applicable laws were. I built my own case for custody and worked toward finding an attorney. Luckily, a few days before the temporary custody hearing, Iowa Legal Aid approved my application for pro bono legal representation.

I went to court with an attorney who had no time to prepare and who had just graduated law school. I remember walking into the courtroom feeling like we were David, and my ex-husband and his attorney were Goliath. The only thing between me and losing my children was a 23-year-old man with no experience who would be using amateur legal work I had done myself.

Prior to 2011, Iowa, the state where we had been living, enacted legislation that assigns a legal presumption against joint custody when there is a history of domestic violence. This means in cases with domestic violence, the state favors assigning sole legal custody to the nonviolent parent. I believed since I had pictures of the injuries I had sustained from his last attack, since there was a domestic violence criminal charge pending, and since my ex-husband had a history of domestic violence, the judge would not grant my ex-husband joint custody.

I was mistaken.

Not only did the judge grant him joint legal custody, the judge also ordered me to meet my ex-husband in Wisconsin for visitation exchanges, even though another judge had ordered a criminal no contact order, which requires the abuser not to come within a specified distance of the victim and to not contact the victim. Wisconsin was halfway between our respective homes. This judge’s decision required me to, in essence, violate one court order to comply with the other court order.

This contradiction in orders left me in fear of losing my children if I did not comply with the visitation order, but also in fear of my physical safety if I disregarded the no contact order. Courts can and do hold parents in contempt of court for failing to deliver children to their visitation exchange. Moreover, since this was a temporary visitation order, I ran the risk of losing custody at the permanent custody hearing, months later, if I failed to comply.

I was left with no protection.

During this time, my ex-husband’s family contacted me on his behalf over 20 times, actions in direct violation of the no contact order. My ex-husband was subsequently arrested and charged with violating the order. However, the judge dismissed the charges because I lacked the financial resources to drive back to Iowa a third time to testify against him.

The judge did not have to dismiss the charges. Iowa has a Crime Victims Compensation Program with funds available to financially assist travel to court, among other costs. But neither the court nor the prosecutor made those resources available to me. In most jurisdictions, it is procedure to assign a victim’s advocate who helps victims navigate the criminal court process, including applying for assistance. Unfortunately, this assistance is nonexistent when victims engage in civil court proceedings such as divorce, custody, or paternity.

My ex-husband pleaded no contest to domestic violence and the judge sentenced him to unofficial probation, a $62 fine, and batterer education classes. The reality in Iowa is that the fine for stealing a small item from Walmart is often higher than the fine for beating your wife.

Throughout my experience with the court system, wealth and gender were consistent barriers to justice. If I had had a private attorney with more experience, my chance of gaining sole custody would have greatly increased—and if I had committed a crime, I would have been arrested instead of just served papers and released, like my ex-husband had been.

The judges in my case chose to go against codified laws again and again. The reality was that if I missed a court hearing, the judge would have ordered a default judgment in my ex-husband’s favor.

In a country with vast resources, domestic violence survivors like myself, those who are poor, those who are victims, are often left to fund their own pursuit for justice. The system is built to provide access for all, but justice for only a few.

In the last seven years, I rose above my poor, uneducated beginnings. I now have two bachelor’s degrees and will graduate with a Juris Doctor degree in May 2019. I chose this path because I decided I could not sit idly by while victims continue to be forced to proceed in a system that disadvantages them at almost every turn. I could not sit by while the idea that an abusive husband will only abuse his wife and spare his child still prevails throughout our court system. I could not sit by while the judiciary continues to operate with the implicit ideology that having equal access to both parents trumps the abuse that children endure.

State legislatures and the judiciary must start to recognize that instead of ensuring parental rights, they must start protecting the most innocent and vulnerable individuals: children, and they must protect all victims of domestic abuse, no matter their economic standing. I was able to gain freedom; my children still face years of abuse that the court is unwilling to intervene upon.

One of the most tragic aspects of my story is that seven years later and within striking distance of my law degree, I still will only publish under a pseudonym because of the potential repercussions of being dragged back into court and losing custody of my children if my ex-husband finds his abuse has been brought to light. The reality is, you can be correct on the law and correct on the facts, and still have a strong chance of the court ruling against you. The odds are less in your favor if you are poor—and according to a 2011 study, 99 percent of domestic abuse victims face financial abuse from their partners.

Since my court case ended, I have had the honor of working with other judges who have been great arbiters of justice. I have seen judges grant additional time to pay fines, drop fines all together, and help victims feel protected. I’ve seen them empower victims to give voice to their truths and show compassion to those struggling with addiction.

With that being said, we as a country have a crisis in our judicial system. The deeply woven patriarchal and classist presumptions that influence our judiciary and state legislatures have given rise to a false narrative that justice is blind; in reality, judges’ decisions are often driven by their own bias and prejudice, decisions that can leave domestic violence victims behind.