Challenging Restraining Order Decisions Based on Bias: ADZ LAW, LLP Signs Another Essential Amicus Brief Filed by FVAP

At ADZ, we note every day how cases involving domestic violence not only raise complex legal issues but are also emotionally complex. Moreover, the legal system does not always proceed at the speed of a victim’s healing, and at times can even impede such healing. One such legal decision was made by a trial court recently, when it denied a restraining order largely based on negative biases about the victim. The decision is rightfully being appealed now. ADZ has joined other leading experts in the domestic violence field and signed an Amicus Curiae Brief (‘Friend of the Court’ brief, as a non-party) prepared by FVAP, Family Violence Appellate Project. 

In the Mendez v. Salcido case now before the California Second District Court of Appeal, the denial of the Domestic Violence Restraining Order (under Family Code section 6200 et seq.) is being challenged. Our decision to sign the Amicus Brief in support of the Petitioner is especially driven by the trial court’s erroneous reliance on several common, but catastrophic, biases and myths about domestic violence victim-survivors.

The dangerous myth that domestic violence must include some physical violence has been rebuked repeatedly by the legislature and courts, and yet some judges continue to rely on it. In the current case, the Judge refused to consider emotional abuse faced by the Petitioner and in fact made a statement that “other than the allegation of the hair pulling, none of it would substantiate a restraining order.”  The amicus brief explains why this is an error of law. (Indeed, at ADZ we also note that “hair pulling” is a typical act of physical abuse that is often preferred by abusers since it often results in no visible marks.) Regardless of societal biases, the law dictates that victims do not have to demonstrate physical abuse to prove the domestic violence and their need for a restraining order. 

The myth that if someone truly feels in danger they will seek a restraining order right away, has been clearly rejected in the California Family Code. Yet, the Judge in this case asked a string of questions regarding why the Petitioner had waited to seek a restraining order. The law is clear that “[t]he length of time since the most recent act of abuse is not, by itself, determinative.” (Fam. Code § 6301(c).) This is in recognition of the trauma and complex emotions, as well as other life challenges, that victims must juggle before they can approach a court for help. The Amicus Brief explains why the Judge’s line of questioning regarding timing was victim-blaming and erroneous.

We are also no strangers to the wrong argument that if someone says they still love and care for the person abusing them, they must be confused about the abuse, or worse, must be lying about the abuse. In fact, what seems like counterintuitive behavior from outside the relationship, is perfectly understandable within the relationship. As the amicus brief recounts, our appellate courts have noted that because “family violence occurs within ongoing relationships that are expected to be protective, supportive, and nurturing,” its “victims frequently feel a sense of loyalty to their abusers.” (People v. Brown (2004) 33 Cal.4th 892, 899.) Further, other complex emotions (shame, confusion, betrayal) interplay and result in victims often minimizing the abuse to others, and sometimes even to themselves. As a result, victims may even make decisions that ultimately increase their risk of abuse. The Petitioner in this case had made exactly such a decision.

The Petitioner had gotten into the Respondent’s car, even as she feared him and knew his capacity of violence. Then, in fear, she had attempted to get out of his car, and escape. The Judge questioned both these behaviors, effectively putting the onus of the victimization on the victim. Further, the Petitioner had consumed alcohol, a decision the Judge also scrutinized in detail. Nothing excuses the choice the Respondent made to abuse the Petitioner. As the Amicus Brief notes, The California Family Code defines abuse without reference to the victim’s actions (See Fam. Code, §§ 6203, 6320.) Biases certainly do not excuse abuse. That fact drives our work at ADZ, and the work of all those who have signed the important Amicus Brief asking the Appellate Court to correct for the errors of the trial court.

Finally, immigrant litigants face a series of biases, and language and cultural differences can often be used as a cloak for wrong decisions. In this case, the Judge refused to consider evidence, including telling text messages, because they were not translated. The Petitioner was self-represented and did not have the ability to successfully challenge this decision. Evidence must always be authenticated in court. Further, translations must also be certified. Here, the Petitioner was not informed how to make her evidence legally admissible, and the Judge simply denied viewing, or hearing about, the text messages. At ADZ, we routinely note that surveillance and harassment by text and technology has become a standard tool employed by abusers. In all our cases, we insist that such acts be carefully considered by the court. Why should the standard be different for a self-represented petitioner? We signed this Amicus Brief because it is essential our courts adhere to the law; do not succumb to societal biases; and do not fail to protect equal access to justice for all survivors.

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