Abstract
Individuals who have experienced sexual and gender-based violence may be victims of crimes under various state and federal laws, including assault, sexual abuse, rape, battery, human trafficking, and many others. Survivors of sexual trauma often have complicated, drawn-out, and harmful interactions with legal systems that are ultimately destabilizing. For medical practitioners working with survivors, it is important to understand the various legal needs that a survivor might have. While medical providers may not be directly involved with these legal processes, they can mitigate the impact that survivors’ legal disempowerment has on their physical and emotional health and safety. Furthermore, providers can collaborate with legal professionals to bridge the gaps between the medical and legal systems and allow survivors to better access existing resources. This chapter describes what legal needs a survivor might have, what resources are available to meet survivors’ needs, and what promising interdisciplinary practices may help medical providers to reduce the harm of legal system involvement.
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Introduction
Individuals who have experienced sexual and gender-based violence may be victims of crimes under various state and federal laws, including assault, sexual abuse, rape, battery, human trafficking, and many others. At first glance, one might assume that criminal and other legal systems would recognize them as victims and offer protection, safety, and recourse. However, for many victims, that is not the case. Instead, survivors of violence have often had complicated, drawn out, and harmful interactions with legal systems. Frequently, these interactions are deeply connected to their marginalization and vulnerability, and have been destabilizing or traumatizing. As a result, although many survivors have a vast array of legal needs, they view the legal systems that govern those needs with significant, and well-earned, distrust.
Legal system involvement often creates additional barriers for survivors which are commonplace, but not insurmountable. Such barriers include considerable demands on time, lack of access to information, coerced or pressured decision making, and further trauma in the form of a lack of control. Separate from the specific outcome of a legal case or proceeding, system involvement can have further negative impact, often labeled “collateral consequences”—a term used to describe additional penalties caused by having, or being involved in, a legal case. All direct service providers must understand these consequences in order to meaningfully assist survivors with comprehensive responses. Armed with this knowledge, medical providers can reduce the impact that survivors’ legal disempowerment has on their physical and emotional health and stability. Additionally, through collaborative partnership with legal professionals, medical providers can bridge gaps to allow survivors to access resources within legal systems. This chapter provides an overview of the way in which survivors of gender-based violence encounter various legal systems, identifies survivors’ common legal needs, and offers best practices for medical professionals to approach interdisciplinary support of survivors in care models.
Legal Disempowerment: Survivors’ Experiences in Legal Systems
System Involvement as Harm
A critical feature of survivors’ interaction with legal systems is that the systems, for the most part, have caused them harm. For medical practitioners working with this population, this may seem counterintuitive. However, parallels exist in the medical system. When medical professionals interact with a patient, they are also reckoning with every prior encounter the patient has had with the healthcare system, for better or worse. The same applies in legal systems. Many patients have prior negative experiences with, and views of, criminal, family, immigration, or other legal systems. Not only does this decrease their access to resources, but bad prior experiences in the legal system influence survivors’ views of institutions more broadly and can lead to distrust of other large bureaucratic systems, such as healthcare or education.
In some legal systems, the disempowerment is purposeful and designed. In others, it is an unintentional consequence. For survivors of gender-based violence struggling with financial stability, marginalization is amplified exponentially. Legal systems in the USA operate on, and instantiate, problematic views of race, gender identity, class, and ability that are well documented in social science literature [1]. For example, disproportionate and discriminatory policing practices dictate who becomes involved in the criminal legal system, rather than the prevalence of crime or criminal behavior [2, 3]. Additionally, the immigration legal system codifies governing, and often fluid, views of race and class that prioritize enforcement against specific groups during specific times [4].
When one looks at which populations and communities are most impacted by, and drawn into, these systems, patterns emerge. For example, with respect to the criminal legal system, between 2010 and 2014 in New York City, over 86% of women arrested and prosecuted were non-white [5]. Women who are detained in jails and prisons across the country also are overwhelmingly non-white, mothers, and primary caretakers of children [6]. Research also shows that a significant majority of women in prison and jail experienced intimate physical or sexual intimate partner violence prior to their incarceration [7, 8].
The net effect is that legal systems are a site of trauma on an individual and community level. They are difficult to navigate and punitive. For medical practitioners working with survivors, it is important to understand how a survivor may have experienced legal systems in the past, the various legal needs a survivor might currently have, what resources are available to meet those needs, and what promising interdisciplinary practices might help mitigate or reduce the harm of legal system involvement. These legal needs are described below in section “Identifying Legal Needs and Remedies”.
Access to Counsel
Access to representation, guidance, and information about how to navigate legal systems varies widely depending on income status. Well-resourced individuals with access to legal representation fare better in the legal system; they understand the process and outcome when guided by an advocate with expertise. On the other hand, too often, poor people with legal needs must go at it alone.
Individuals facing criminal prosecution have a right to counsel in the USA. However, this right, recognized by the Supreme Court in 1963, is not without qualification [9]. In the intervening decades, courts and policymakers have chipped away at the right to counsel in criminal proceedings and diluted the notion of what effective representation means to the point where safeguards do not exist for quality control in criminal legal representation provided by the state. Nonetheless, as fictional television and movie arrests make clear, if you cannot afford an attorney and are facing criminal charges, in most instances, the government must provide you counsel. This is true for criminal charges at the trial level through the first immediate appeal, and also applies to juveniles facing delinquency proceedings or criminal charges.
Outside of the criminal context, there is no universal right to counsel for all legal needs, meaning the government is not required to provide counsel even when the legal systems function as quasi-criminal or where the stakes are very high for the people involved. For example, there is no right to counsel in immigration proceedings, even when a foreign national is detained and facing deportation; in eviction or child welfare proceedings; or when a victim of a crime seeks an order of protection or other relief against the person who committed the crime.
Women, children, families of color, the elderly, and people with disabilities are disproportionately affected by an inability to afford legal representation [10], and therefore vulnerable to additional specific harm in the legal proceedings that govern their lives. For survivors of violence, this often means that they must attempt to learn about their legal options and pursue remedies on their own. Survivors are not guaranteed counsel when, for example, they seek orders of protection or divorce, attempt to secure custody of their children, or try to navigate consumer debt caused by abuse or exploitation. Thus, survivors often must sort through frustrating, and frequently contradictory or inaccurate, information unassisted because legal systems offer inaccessible process and insufficient recourse.
Identifying Legal Needs and Remedies
Criminal
Much has been written about the impact of policing and criminalization in marginalized communities. Critical analysis centers the role of race, class, and gender in the criminal legal system in the USA. The criminal court system and attendant law enforcement machinery have grown exponentially over the last few decades. When coupled with efforts to respond to social issues, such as drug abuse, family violence, and commercial sexual exploitation, that heavily rely on a criminal response, the result is simply an extraordinary number of people arrested and swept into the criminal legal system across the USA.
Connection to Poverty
Poverty and marginalization can lead to additional interaction with the criminal legal system that creates additional complications and obstacles for survivors. Many survivors face repeated arrest because of policing practices that focus on low level offenses connected to poverty, such as trespassing, shoplifting, or accessing public transportation without paying. Additionally, for many survivors, there is an increased risk of interaction with the criminal legal system because of their race, gender identity, homelessness, or perceived nationality. Arrests, even for minor offenses, can disrupt stability and have negative consequences. Many individuals arrested and detained for even a short time risk losing shelter housing placements, or missing required appointments at social service agencies, school programs, or medical providers. Short-term incarceration can cause breaks in important routines, such as access to prescription medication or other medical care.
Family Violence
Survivors of intimate partner or family violence also face heightened risk of arrest directly connected to their victimization. Mandatory arrest policies in many jurisdictions mean that the police must make an arrest when responding to a call for assistance. This occurs even if all members of the family present when the police arrive indicate that the situation has been resolved and that arrests are not necessary or desired. Dual arrests, where someone who has experienced violence is arrested along with the person who committed the violence, are commonplace [11, 12].
Mandatory arrest policies, like any police interaction, are governed by assumptions and stereotypes that law enforcement officials make and rely on about the individuals involved. Notions of gender roles and gender identity impact the police determination of who may be an aggressor and who is a victim, and therefore the response. This is particularly fraught, and problematic, when police respond to alleged violence in same-sex relationships or relationships where one or more person is gender nonconforming, queer, or nonbinary [13, 14]. Police are much more likely to arrest both people in a same-sex couple when responding to a violent situation [11].
Many scholars have established how mandatory arrest policies have failed to protect women of color from violence because race also impacts how police respond to family situations [15]. Beyond just failing to protect, women of color are actually harmed and made worse off by these arrest practices. Women of color are arrested more often than white women when police respond to a home [12]. Taken as a whole, contemporary police practices around family violence render survivors less safe, and are particularly concerning for women of color [16, 17].
The risk of criminalization of survivors does not end with arrest policies. Survivors of intimate partner violence who have children risk being prosecuted for failing to protect their children from abusive spouses or partners [18]. Children are often removed from the custody of a parent who has experienced domestic abuse at the hands of a partner. Many IPV survivors may then also face criminal prosecution in addition to losing custody of their children.
Furthermore, criminal court proceedings involving alleged domestic violence are coercive. No-drop policies mean that even when a victim does not want to see their abuser prosecuted criminally, the victim does not have control over that decision or process. Prosecutors can threaten to prompt a child welfare investigation into a family if victims do not wish to cooperate in a prosecution.
When survivors do not wish to cooperate with a law enforcement investigation or a prosecution, they can be jailed to compel compliance. Specifically, with respect to sexual assault, there has been a disturbing use of prosecutors’ power to deem some witnesses as “material” to their case as a way to control survivors who do not wish to testify in court. Material witness orders allow the detention of witnesses until a proceeding has concluded. This recently has included survivors of sexual assault, domestic violence, and sex trafficking [19].
In cases involving violence, courts frequently, if not always, issue restraining orders or orders of protection that mandate no contact between the parties. These orders often fail to provide any concrete protection from abuse. Instead, mandatory orders of protection create logistical obstacles and force family separation even when family members do not wish to be separated [20]. Many survivors of family violence do not want mandated separation from the person who has committed the violence. Too often, survivors’ agency, self-determination, and autonomy are compromised because courts issue orders that require complete separation and are not responsive to survivors who express contrary desires [21].
Prostitution and Trafficking
Individuals compelled to engage in, or trafficked into, the commercial sex industry, or other illegal labor sectors, face arrest for prostitution offenses, possessing false documents, and other offenses directly tied to their trafficking and exploitation. In 2016, the National Survivor Network published a survey of its members, all human trafficking survivors, that showed that 90% of respondents had been criminally prosecuted and had resulting criminal convictions on their record [22].
Victims trafficked into illegal conduct, such as sex work, often face repeated arrest. Central to the practical application of the law in this area is the relationship between prostitution and sex trafficking, which are distinct but often conflated. Not all sex work is trafficking. Trafficking only occurs where a person’s involvement in commercial sex is induced by force, fraud, or coercion, or where the person involved is less than 18 years old. People engage in commercial sex for many different reasons and in a variety of ways. Providers, legal or medical, should make no assumptions about individuals they are working with who may have become involved in commercial sex by choice, circumstance, or coercion.
Still, people engaged in prostitution—trafficked or not—frequently interact with the criminal legal system because of their own arrest and prosecution [23]. Once involved in the criminal legal system, arrested individuals face potential detention in jail or prison, probation or other supervision and surveillance, or mandatory “programs” that are designed to offer assistance, though these programs are overshadowed by the threat of prosecution if the individual does not comply [24, 25].
Foreign Nationals and the Criminal Legal System
For foreign national victims, any interaction with the criminal legal system creates additional danger. In a rapidly shifting immigration landscape, one of the largest risk factors for being placed in removal or deportation proceedings is an arrest. Foreign nationals who have been arrested, even if not ultimately found guilty of anything, may be placed in removal proceedings, have their lawful permanent residence challenged, and/or be unable to naturalize to become a citizen.
Arrests for prostitution-related activity, drug offenses, or other crimes that meet the definition of a “crime of moral turpitude” also present specific dangers to foreign national survivors. Noncitizens may be denied initial or return entry to the USA if immigration officials have reason to suspect they are entering for the purposes of prostitution, which can be based on arrest or conviction records. Convictions may also bar foreign national victims from a variety of forms of immigration relief, explored more fully in Immigration below.
Additional Consequences
Arrests and criminal court involvement have significant consequences for any individual, though particularly for survivors. To begin with, many individuals who have been arrested or criminally prosecuted do not meaningfully understand the nature or outcome of the proceedings. In fact, the majority of people who have been arrested go through the court process without a clear understanding of what occurred and what remains on their record subject to public search, background checks, or other reporting.
This is problematic as a criminal record can control, or foreclose, access to employment, housing, financial assistance, and/or other civic participation. Although state law varies, in many places a criminal record precludes someone from being able to vote. Almost every employer now requires some form of background or criminal history check. In the employment application context, when individuals don’t know or understand what might appear on their criminal record, they may answer questions pertaining to that record incorrectly, be disqualified from opportunities, or be deterred from attempting to engage in the first place.
Separate from the actual sentence, or punishment, imposed by the court, the additional collateral consequences of an arrest are far-reaching. Because these consequences are so critical, and dependent on local law and policy, the American Bar Association (ABA) developed the National Inventory of the Collateral Consequences of Conviction, a database identifying more than 44,000 separate collateral consequences. This includes nearly 17,000 licensing/occupational laws with criminal record provisions, more than 6000 of which carry mandatory/automatic exclusions [26].
Survivors of sexual violence who have been arrested due to their victimization may also have open warrants stemming from the arrest and court proceeding. When an individual fails to appear in court after being directed to do so, the court can issue a bench warrant, which authorizes any member of law enforcement to take that person into custody. For example, victims of trafficking who are arrested for prostitution and other offenses are often controlled by traffickers who manage their movement such that victims miss court dates because they have been brought to another jurisdiction or are simply not allowed to make an appearance in court. As a result, open warrants can haunt survivors both during and after their trafficking.
As a whole, resolved or unresolved criminal legal system involvement causes fear, anxiety, and stigma for survivors. For survivors who are still actively victimized, arrests and prosecution reinforce the message that their traffickers and abusers have worked to instill—that they are seen as criminals, that they have no value, and that no one will believe them should they choose to seek assistance or disclose what is happening to them. For survivors who have extricated themselves from violence, exploitation, or abuse, criminal records create high barriers to employment, safe housing, education, financial assistance, and other key components of stability and independence. The National Survivor Network survey revealed that over 80% of respondents had faced barriers with employment and 50% with housing [22]. Criminal records can even be used by the trafficker against the survivor; for example, in instances where they have children in common, traffickers have pointed to the survivor’s record as evidence of unfit parenting in custody disputes.
Equally important, a criminal record serves as a constant reminder of past abuse and as a source of tremendous shame. Survivors of gender-based violence often face demands that they explain to a potential employer or housing manager the circumstances of their prior arrests or convictions and therefore must choose between sharing their victimization history or simply walking away from an opportunity. Many survivors choose not to relive this experience.
Fortunately, state law is beginning to reckon with the huge impact of collateral consequences. It is promising that many states are taking this up as a civil rights issue and as part of larger criminal reform strategies. Attempts to counteract disenfranchisement for people with criminal records are beginning to build more broadly. For example, there are campaigns to offer increased general expungement or limit employers’ ability to use criminal records against an applicant in the hiring process. All direct services professionals should be familiar with local efforts in their jurisdiction and make appropriate referrals to legal services organizations or pro bono attorneys for criminal record-related issues [27].
Additionally, there has been a recent wave of development specific to survivors of human trafficking. Nearly all the states in the USA have enacted laws that allow victims to vacate, expunge, or seal prior convictions for prostitution-related or other offenses. Although slightly different from state to state, these criminal record relief laws allow survivors to petition to have arrest or conviction records removed from their record or shielded from disclosure [28]. While most states limit record relief to situations where an arrest was a result of human trafficking, some states have begun to conceptualize criminal record relief for survivors of other forms of gender-based violence as well [29]. This is a critical area of state law that will hopefully continue to grow.
Medical professionals should be mindful of a survivor’s potential interactions with the criminal legal system when working with patients and gathering information. Notably, when assessing a patient’s history, decisions, or options, medical practitioners should refrain from simply suggesting a person contact the police if they have been the victim of a crime. Many jurisdictions have public defender offices that would be a good point of first contact for professionals, or survivors, with questions about the criminal legal system. This can include questions about how to handle situations with the police, one’s own record, open warrants, or other concerns.
Immigration
Immigration status can impact survivors of gender-based violence in several ways. Survivors who are foreign nationals, non-US citizens, have specific considerations related to their ability to remain in the USA if that is what they wish to do. This includes specific risks and consequences, as well as some avenues to seek humanitarian relief because of their status as a crime victim [30]. Thus, immigration status must be considered both proactively and defensively, particularly at a time when anti-immigrant rhetoric is shaping policy and making it harder for all noncitizens, particularly asylum seekers or victims of crime, to find security and stability for themselves and their families. Different forms of humanitarian relief are described more thoroughly below.
Noncitizens in the USA can be present lawfully or without documents. Lawful presence is either temporary or permanent. Temporary status is bestowed through the issuance of specific visas which govern the duration and activities allowed during a visit, such as a tourist, student, or employment visa. These visas often restrict or dictate an individual’s ability to work, and expire after a certain period of time. On the other hand, lawful permanent residence, also referred to as a green card, allows a foreign national to remain in the USA indefinitely and work without restriction. One can obtain lawful permanent residence through a family member petition, an employer petition, or humanitarian relief. Undocumented foreign nationals either entered the country without inspection by crossing a border without detection or have overstayed a temporary visa status.
Foreign nationals living in the USA without documentation generally have a high level of anxiety and fear connected to their lack of secure immigration status. Such individuals may go to great lengths to avoid contact with law enforcement or other government agencies. They may not be eligible to receive public benefits or other forms of government assistance. Additionally, revealing their status may subject them to harassment or anti-immigrant hostility. As such, many foreign nationals living in the USA without documentation attempt to remain as far below the radar screen as possible. Still, the risk of coming to the attention of authorities and either being detained or facing removal from the country is a constant concern. Victims of gender-based violence who are undocumented may fear interaction with nongovernmental organizations that offer assistance for the same reasons. Thus, lack of secure immigration status can cause victims to remain in dangerous or violent situations and can have a harmful impact on their families.
Foreign national victims of gender-based violence who are undocumented or have temporary status may be eligible to seek specific immigration relief because of their victimization. This relief allows them to remain in the USA and, in some cases, provides a pathway to permanent residence and even naturalization. These remedies vary greatly as to eligibility and outcome, but most victims do not know such remedies exist and therefore miss an opportunity to obtain stability. Although affirmative immigration status adjustment can be oversubscribed and generally difficult to obtain, that is not always the case with the specific forms of humanitarian relief available to foreign national victims of crime.
U Visa
A U Visa is a temporary status available to victims of a qualifying crime in the USA. Eligibility for a U Visa requires that a foreign national crime victim possess information concerning that qualifying crime; has been helpful, is being helpful, or is likely to be helpful to a law enforcement official; and has suffered substantial physical or mental abuse. Qualifying U Visa crimes include trafficking, rape, sexual assault, abusive sexual contact, domestic violence, and female genital mutilation [31].
T Visa
Victims of human trafficking may be eligible for a T Visa. A T Visa is a temporary status available to someone who has been a victim of a severe form of trafficking, as defined by federal law; is physically present in the USA on account of trafficking; has complied with any reasonable request for assistance in the investigation or prosecution; and would suffer extreme hardship involving unusual and severe harm if removed from the USA. For a T Visa, the trafficking must be reported to a law enforcement agency except where the victim is younger than 18 or unable to cooperate due to physical or psychological trauma.
Violence Against Women Act Self-petition
The Violence Against Women Act (VAWA) offers specific relief for undocumented survivors of domestic violence. An abused spouse or child of a US citizen or lawful permanent resident, or a parent of a US citizen, can self-petition through VAWA [32]. VAWA is available to people regardless of gender, authorizes a recipient to live and work in the USA, and provides a pathway to permanent resident status.
Refugee Status and Asylum
Refugees/asylees are eligible to seek protection in the USA because they have been persecuted or fear persecution in their home country due to their race, religion, nationality, political opinion, or membership in a particular social group. In recent history, victims of domestic violence were considered eligible to seek asylum in the USA as a particular social group. However, a decision announced in June 2018 by the Attorney General attempts to change this by reversing the Board of Immigration Appeals where it allowed a woman from El Salvador to seek asylum in the USA because of the intimate partner violence she faced in her country of origin [33]. Although the implications of this decision are still being tested, the result may be that many victims of domestic violence who may have previously had an opportunity to seek asylum in the USA will be ineligible to do so moving forward. Questions remain about this critical area of the law, which will likely see additional changes.
Additionally, asylum is an area where there has been extensive fraud and exploitation of vulnerable immigrants by legal representatives. Unscrupulous asylum practices have led to great misunderstanding in immigrant communities about viable asylum claims and attendant requirements. Marginalized immigrants who are not connected to nonprofit legal or social services providers can fall prey to these unprofessional and unethical legal practices. As a result, many foreign nationals who believe themselves to be represented in immigration proceedings, or even believe that they have obtained temporary or permanent status, learn later that they have been the victim of fraud at the hands of their purported legal representatives [34].
Many foreign national survivors of sexual or gender-based violence are unaware that they may be eligible for humanitarian relief based on that status. Medical practitioners and staff may, in fact, be on the frontline of identifying foreign national victims who could avail themselves of humanitarian relief.
Housing/Public Benefits/Consumer Debt
Economic instability causes many survivors of gender-based violence to struggle with legal needs related to housing, eligibility for public benefits, and debt/credit management. Often times, these surface as social service needs. Initially, survivors may struggle with access to resources such as crisis or short-term shelter, food, and transportation. Social service needs can be confused with, or mislabeled as, legal needs. Social workers and case managers can help address service needs. Legal representation comes in when there is a problem with the service provision, such as denial of services to which someone is entitled in violation of established law and policy.
Survivors without steady and reliable income may face homelessness. The need for shelter is widespread and doesn’t always rise to the level where legal representation is necessary or helpful. However, survivors can require legal assistance when, for example, they are denied shelter services unlawfully or suffer unsafe conditions within temporary shelter. Survivors who rent or own property can face eviction or foreclosure when financial instability causes missed rent or mortgage payments. Additionally, survivors may face housing discrimination if they have criminal records. Public housing policy often excludes individuals with certain criminal histories. Many private landlords conduct background checks as a precondition to rental. Therefore, survivors may struggle with additional obstacles in seeking safe housing, some of which may require legal representation.
Accessing public benefits is also critical for survivors seeking to establish independence, safety, and stability. The public benefit system, like insurance systems for healthcare, is complicated and consists of an intertwined set of federal, state, and local policies. Bureaucratic in nature, the public benefits system is difficult to navigate. Some even posit that it is intentionally so [35]. Legal representation can help when survivors have been denied benefits after applying, have benefits disrupted because of issues with requalification or certification, or when they have alleged violations of program requirements. Legal and social service advocates can help survivors determine eligibility and how to satisfy proof requirements requiring need, residence, family composition, and any other extenuating factors that could impact benefits.
Finally, survivors may struggle with consumer debt or other credit issues either directly related to their victimization or as a result of the economic instability that preceded or followed [36]. For example, many intimate partner abusers and traffickers open accounts in the name of those they victimize in order to escape financial liability for nonpayment. As part of their coercion, human traffickers may take control of their victim’s finances. This can even include filing fraudulent tax documents. Legal services organizations that offer debt and credit assistance can work with survivors to ascertain what appears on their credit report, repair credit, and mitigate debt caused by victimization [37].
Family Law
Under the broad heading of family law fall various legal issues, including divorce, custody, child support, and abuse or neglect proceedings. Often, survivors have family relationships with their victimizers, and may have children with them. As a result, family law needs can fall into generally two categories: those involving the termination of the intimate partner relationship and those involving the survivors’ children.
When the survivor has had an intimate partner relationship with the person who has committed the violence or abuse, survivors may need legal assistance obtaining divorces if they were married, or orders of protection, if that is what they desire. If there are children in common, survivors may need legal representation to safeguard custody or visitation rights as well as child support.
With respect to a survivor’s children, it is impossible to overstate the amount of anxiety and fear that inform an interaction with the family court or child welfare system. Allegations of abuse and neglect may arise when a survivor’s instability impacts their ability to care for their children. On the other hand, allegations of abuse and neglect can also be used as a weapon or tool of further manipulation by an intimate partner perpetrator. Here too, criminal records come into play, and survivors’ own criminal records—for example, for prostitution—may be used to support allegations that they are not an appropriate caregiver for their children. This may happen even if there is no allegation that the children were present during any commercial sex work, left alone, neglected, or in any other way impacted by their parent’s involvement in prostitution. The heavy stigma of allegations of prostitution activity can influence family court proceedings unfairly.
As with immigration and other civil legal services described above, there are nonprofit organizations that may offer assistance to survivors. Best practices, which will be discussed more fully in Best Practices and Responses, below, involve medical professionals identifying and forging relationships with these various organizations for mutual referrals and collaboration.
Victims’ Rights, Civil Remedies, and Restitution
If survivors are identified as such in a criminal proceeding, and the person who has committed the offenses against them is prosecuted, there are additional legal considerations for the survivor. First, the survivor has rights in terms of how they are to be treated by investigating members of law enforcement and prosecuting attorneys [38]. If those rights are not enforced, a legal advocate can help protect the survivor’s interests. Additionally, when a survivor does not wish to be part of an ongoing criminal investigation or is worried about their own potential criminal liability, legal representation can serve as a safeguard. Whether pushing back the threats that may accompany noncooperation, advising how to respond to subpoenas or other law enforcement demands, or defending against prosecutor’s efforts to compel testimony, a victim’s rights attorney will work only with the interest of the survivor in mind.
If the person who committed the offense against the survivor is ultimately arrested, prosecuted, and/or convicted, the survivor may be entitled to victim compensation. Also, many state and federal laws allow for, or even require, restitution for victims as part of the disposition of any criminal charges. Again, victim’s rights attorneys can make sure that a victim receives any restitution or compensation for which the victim is eligible.
Finally, state and federal law often provide what is called a private right of action for victims, irrespective of whether the person who committed the offense was criminally prosecuted. This means that survivors can bring a separate civil lawsuit against the person who committed the offense, and any other person or entity who may have been responsible, to recover damages related to the victimization. While survivors may have access to victim compensation funds or restitution, often these options do not sufficiently compensate the survivor for all the harm they suffered. Depending on the law, survivors may be able to further seek compensatory damages, punitive damages, injunctive relief, and attorney’s fees in a civil lawsuit. Additionally, some statutes allow courts to award enhanced damages in cases where the defendant’s actions were willful and malicious. In this field, there may be a broader array of attorneys available, and willing, to take on representation, because the attorneys also stand to profit from a settlement or favorable verdict.
However, it is worth noting one significant consideration for survivors contemplating civil actions: many individuals against whom survivors would be able to bring a claim are judgment-proof. This means that even were a survivor to successfully litigate a civil claim against them, the trafficker has no money or assets to satisfy the judgment. Attorneys should review this in each individual case with survivors so that expectations are clear from the beginning and that survivors understand the risks and potential benefits of civil litigation before deciding whether to bring a lawsuit.
Best Practices and Responses
Given that the majority of patients who have experienced gender-based violence will have unmet legal needs, best practice for medical providers is to look for opportunities to speak to patients about potential referrals for assistance. Once patients have disclosed legal needs, partnerships with legal services organizations and other legal advocates can be immeasurably helpful to improving access to assistance and services. Collaboration can range in formality, but is predicated on communication and a willingness to mutually assist. Interdisciplinary approaches are truly transformative as they involve making inaccessible or obtuse large bureaucratic systems easier for survivors to navigate and improving both legal and medical outcomes.
Initially, medical practitioners may find informal collaboration sufficient in forming relationships and meeting their needs. With progress, this can lead to more formalized, and innovative, examples of collaboration which can include specialized clinics and medical-legal partnerships. Specialized clinics operate to provide medical or legal assistance to a specific population. For example, in New York, the PurpLE Clinic (Purpose: Listen & Engage) was founded in 2015 to provide primary care specifically to survivors of sexual violence [39]. The EMPOWER Clinic, founded by editor Dr. Veronica Ades, offers obstetrics, gynecology, psychiatric, and family planning services to survivors and maintains close relationships with local social services organizations for cross-referrals [40]. Similarly, many legal services organizations offer community-based clinics where individuals in need of assistance can walk-in and obtain information or referrals.
Medical-legal partnerships (MLPs) have proliferated across the country in recent years and are part of a more concerted effort to bring legal advocacy into places offering medical care. These partnerships offer medical patients on-site legal assistance and work to effectively improve medical provider/patient relationships and outcomes as well as increase access to needed services. As the National Center for Medical-Legal Partnership notes,
Today, over 300 MLPs comprise the landscape of partnerships nationwide, demonstrating enormous diversity in terms of the patient populations served, as well as the size, structure and scope of the particular MLP. MLPs are growing and spreading at a time that other federal and state initiatives are not only recognizing, but are also investing in a systematic approach for identifying and addressing social determinants of health. [41]
Such partnerships serve as direct service providers but also help transform the practice of medical and legal institutions to be more comprehensive and responsive. In many places, MLPs have originated at academic institutions, where law faculty and students collaborate with their medical peers. For example, Yale Law School operates five separate MLPs in New Haven, Connecticut, including the Transitions Clinic for individuals who have returned to the community after a period of incarceration [42]. Transitions offer medical care, social services assistance, and legal screenings at one location. Early evidence indicates that these MLPs significantly improve outcomes for participating individuals. MLPs also allow for interdisciplinary data collection and research that can further both healthcare and legal system reform [43].
Conclusion
Given the role that legal systems play in the lives of survivors of gender-based violence, treating medical practitioners should recognize the impact and scope of legal needs as they affect comprehensive health and social outcomes. Additionally, identifying the harms caused by the legal system and working consistently to protect against that harm can create better outcomes and reduce marginalization. Incorporating this understanding and analysis becomes part of a harm reduction approach that makes survivors safer, more empowered, and less disenfranchised.
There are insufficient resources in the legal community to meet all the legal needs of all marginalized people. There is no guaranteed counsel in almost all of the legal systems with which vulnerable individuals have most contact. However, even with these limited resources, personal and inter-organization collaboration makes a big difference. Case by case, medical and legal practitioners working in tandem in an interdisciplinary manner can make both the medical and legal systems less traumatic and harmful for survivors.
References
For a parallel analysis within medical practice, see Pearson R. No apparent distress: a doctor’s coming of age on the front lines of American medicine. New York: W.W. Norton & Company; 2017.
Data from The Sentencing Project data indicates that: Sentencing policies, implicit racial bias, and socioeconomic inequity contribute to racial disparities at every level of the criminal justice system. Today, people of color make up 37% of the U.S. population but 67% of the prison population. Overall, African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men. https://www.sentencingproject.org/criminal-justice-facts/. Accessed 10 June 2019.
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As an example, in 2017, the American Civil Liberties Union filed a lawsuit against prosecutors in Orleans Parish in Louisiana. According to the complaint, prosecutors sought more than a hundred and fifty material-witness warrants over the past five years in Orleans Parish; approximately ninety per cent of the victims and witnesses, in cases where the A.C.L.U. could determine race, were people of color. Poverty, homelessness, precarious immigration status, and mental-health issues were all invoked by the D.A.’s office as reasons to jail crime victims, who included survivors of sexual assault, domestic violence, and child sex trafficking. See: Stillman S. Why Are Prosecutors Putting Innocent Witnesses in Jail? The New Yorker, October 17, 2017. In March 2019, a federal district court judge allowed the lawsuit to move forward. See Press Release, Judge Allows Case Against Orleans Parish DA Cannizzaro for Using Bogus Subpoenas and Jailing Crime Victims to Proceed. ACLU March 1, 2019. https://www.aclu.org/press-releases/judge-allows-case-against-orleans-parish-da-cannizzaro-using-bogus-subpoenas-and. Accessed 17 June 2019.
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For example, survivors who are identified as victims in pending federal criminal proceedings, have specific rights provided by the Crime Victims’ Rights Act, enacted in October 2004 (18 U.S.C. Section 3771). This includes the right to be reasonably protected from the accused, to have reasonable, accurate, and timely notice of, and to be heard at, any public proceedings. The Act also specifies that victims have the right to confer with the attorney for the Government in the case, should be given full and timely restitution, and should be treated with fairness and with respect for the victim’s dignity and privacy.
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Mogulescu, K. (2020). Legal Systems and Needs: Considerations for Survivors of Gender-Based Violence. In: Ades, V. (eds) Sexual and Gender-Based Violence. Springer, Cham. https://doi.org/10.1007/978-3-030-38345-9_13
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